:
I call the meeting to order.
We are continuing our study of the access to information request for the Department of Foreign Affairs and International Trade internal report entitled “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”.
Today, from the Department of Justice we have Denis Kratchanov, director and general counsel from the information law and privacy section. He has been here before. Welcome, sir.
From the Treasury Board Secretariat we have Jim Alexander, deputy chief information officer; and Donald Lemieux, executive director of information, privacy and security policy. Welcome to you as well.
Does anyone have an opening statement? Okay, both of you do, so we'll let you both go.
I just want to remind everybody that we're here looking at that document, but particularly about the access to information issues surrounding it, including the request, how it was responded to, and what the government's policies and Treasury Board policies are surrounding that. Perhaps opening remarks can more or less focus on those things.
Mr. Alexander, go ahead.
[Translation]
My name is Jim Alexander. I am the Deputy Chief Information Officer at Treasury Board Secretariat. I am accompanied by Donald Lemieux, who is Executive Director of the Information and Privacy Policy Division at Treasury Board Secretariat.
On behalf of the Secretariat, I would like to begin by thanking the committee for this opportunity to discuss the policy role that Treasury Board Secretariat plays with respect to access to information across the Government of Canada.
[English]
We've been invited by the committee to offer our knowledge of the access to information policy, for which TBS is the lead department. I'd like to take a few minutes to give a quick overview of the policy to help clarify the different aspects of it and its role in identifying the responsibilities of government departments and agencies in carrying out the requirements of the Access to Information Act.
It's important to note the shared responsibility of the Treasury Board Secretariat and the Department of Justice in providing Canadians with right of access to the federal government's records. In this respect the access to information policy issued by the Treasury Board Secretariat supports and enhances the Access to Information Act and its associated regulations, the broad overview of which falls under the responsibility of the Minister of Justice.
[Translation]
The legislative framework of the Access to Information Act provides a general right of access to information that is held by the Government of Canada. It was proclaimed into force on July 1, 1983.
With respect to the Access to Information Act, Canada has a parliamentary officer: the Information Commissioner. The role of this agent of Parliament is to investigate complaints pertaining to the Access to Information Act and report back to Parliament annually on these investigations.
The Treasury Board Secretariat does not have an audit function with respect to monitoring the administration of the act.
[English]
The Treasury Board Secretariat does not have an audit function with respect to monitoring the administration of the act. The secretariat relies on annual reports and other departmental documents to monitor compliance with policy. Beyond this, Treasury Board policy indicates that internal audit groups are responsible for examining the institution's success in meeting legal and policy requirements. It's also important to note that the heads of institutions are responsible for ensuring that their organizations comply with the Access to Information Act.
The President of the Treasury Board, as the designated minister under the act, is responsible for developing and issuing policies and guidelines governing the operation of the Access to Information Act and its associated regulations.
Treasury Board Secretariat supports the president in this role by developing these policies and guidelines and providing ongoing training to the access to information and privacy or ATIP community. More information on the role of the secretariat can be found in the introduction of the access to information manual that committee members have received this morning.
From a policy perspective, TBS has issued the access to information policy: it applies to 180 institutions that are covered by the legislation. The policy reinforces information management principles inherent in the management of government information policy and the security policy. The access to information policy, which is built on the foundations set out in the act, is there to ensure the effective and consistent administration of the Access to Information Act and regulations on a government-wide basis.
The policy specifies the roles and responsibilities of government departments and agencies to carry out the spirit and requirements of the Access to Information Act in a manner that recognizes the duty to inform as the essential principle underlying the access legislation and discloses to requesters the maximum information possible that is not injurious to the public and private interests identified in the exemptions in the legislation, and does so in the most timely and consistent manner, given the nature and the scope of the request.
As heads of institutions are responsible for ensuring that their organizations comply with the Access to Information Act, deputy ministers and heads of agencies are responsible for ensuring that their organizations comply with the access to information policy.
Now, from a training and development perspective, the secretariat is the functional lead for training the ATIP community. Parliamentarians and the Library of Parliament are among the regular users of the service provided by this ATIP community across the federal departments, and you're familiar with the work and professionalism of these valued public servants.
These qualified individuals have a mandate to provide access to government records to all Canadians. They're also in charge of upholding the legislative and policy requirements for each request, and they do this on an ongoing basis. For example, last year the government's access to information and privacy community processed an astonishing 60,000 requests, which translates into approximately 25,000 access to information requests and 36,000 privacy requests.
Their daily work is founded on a thorough understanding of the laws and policies at hand and their application and the judgment and discretion needed to carry out access to information and privacy files, and ensuring the rightful access of Canadians to information while upholding the exemptions legislated under the Access to Information Act and the legislative framework of the Privacy Act.
Now, given the importance of their mandate, throughout the years Treasury Board Secretariat has adopted different measures to help federal institutions adhere to the policies and standards issued across access and privacy. For example, Treasury Board Secretariat provides ongoing training to the ATIP community. We do this through a variety of means, such as developing training materials and hosting training sessions. Last year we held a total of 23 distinct ATIP training sessions, and so far this fiscal year we've already held 17 training sessions, involving 225 participants.
We hold regular community meetings, often in conjunction with the Department of Justice, and at these meetings we share issues of interest and best practices and advise the community of any changes to the policies. We respond to calls and written requests from ATIP practitioners who have questions or concerns or who require assistance regarding training. We get an average of 50 calls and e-mails a month for interpretation of ATIP policies and guidelines, and then as well we prepare and distribute guidance documents to the ATIP community and maintain things like the manual that we have just distributed.
Finally, we publish the annual Info Source bulletin, which contains the statistics of requests made under access to information and privacy and summaries of Federal Court cases of relevance.
[Translation]
While the Secretariat plays an important role in establishing the policies and guidelines and providing guidance to the ATIP community, it remains the case that heads of institutions are ultimately responsible for the administration of the acts within their respective institutions.
Heads of government institutions are responsible for ensuring that their organizations comply with Access to Information legislation and with Treasury Board policies and guidelines that support the legislation to ensure access to government information. Each institution is responsible for putting in place a process to respond to requests in a manner that is both consistent with policy and complies with legislative requirements.
[English]
The responsibility for responding to access to information and privacy requests within institutions is generally delegated to ATIP coordinators.
The Access to Information Act is an important means for the public to obtain information on government operations and decision-making and is a means through which Canadians can hold the government to account. The government is strongly committed to access to information and its principles of openness, transparency, and accountability. We're also strongly committed to the protection of individual rights to privacy.
I'm confident that we have the legislative framework, policy frameworks, and the tools needed to ensure departments and agencies and crown corporations provide Canadians with access to the maximum information possible that is not injurious to the public and private interests identified in the exemptions in the legislation.
This is an issue that we take very seriously, and as leaders of the ATIP community, I'm confident the same can be said of all ATIP coordinators and their personnel across agencies, departments, and crown corporations.
Ultimately, the government's goal with respect to access to information is to ensure the continued accessibility of information to Canadian citizens and businesses and upholding the act. As such, l can assure you that the Treasury Board Secretariat is committed to supporting the administration of the Access to Information Act and to endorsing the strong and competent community that day in and day out upholds Canadian laws--the Access to Information Act and the Privacy Act--and serves all Canadians in a professional and dedicated manner.
We'll continue to provide all departments, agencies, and crown corporations with guidance on related policy issues as well as arising issues and concerns, and to support the ATIP community across government and across Canada and the essential responsibility this community has in providing more transparency and openness to government in Canada.
Mr. Chairman, this brings me to the end of my statement. I believe Mr. Denis Kratchanov, from the information law and privacy section at the Department of Justice, has a short opening statement as well. Following that statement, we would be very pleased to respond to questions from members of the committee on our role.
Thank you so much.
:
Thank you, Mr. Chairman.
I am pleased to appear before the committee this morning to help you understand the role played by the Department of Justice in the enforcement of the Access to Information Act.
First of all, I would like to say that I have not seen the document entitled "Afghanistan 2006: Good governance, democracy and human rights". I was also not asked to provide legal advice to the Department of Foreign Affairs and International Trade regarding this document or any other similar document. Consequently, I am not in a position to provide you with any opinion about the way the document was processed as regards the enforcement of the Access to Information Act, even if it were my role to do so.
[English]
In reading the transcripts of your last two meetings, I have noted that the committee has some questions regarding the application and the interpretation of some provisions of the Access to Information Act. I would be pleased to answer your questions in this regard if it may help your understanding of the legislation.
As counsel with the Department of Justice, however, it would not be appropriate for me to provide you with legal advice on a particular question, but I will do my best to give you clear and precise answers. Before answering your questions, however, there are two general points that I want to make in respect of the Access to Information Act.
The application of the act is not a scientific process that leads to a predetermined answer. The context in which information exists and the divergent interests that must often be balanced make it a process that is more art than science. The law and the guidelines adopted by the Treasury Board give some structure to that process. But at the end of the day, it is understandable, in my view, that in applying exemptions and exclusions, two competent ATIP officers would come to a slightly different result. This is why there are review mechanisms built into the legislation.
Also, understanding why a particular exemption has been applied may also require the further disclosure of confidential information. This is why the investigations of the Information Commissioner are conducted in private and why the act puts limitations on the information that he can include in his report to a requester. Similar limitations exist in relation to court proceedings relating to the access act.
[Translation]
Mr. Chairman, that concludes my remarks. I would be pleased to answer any questions you may have.
:
Maybe I can just start by explaining that the guidelines we're talking about are what was handed out this morning. There are actually two parts: the policy and the guidelines.
The general scheme is that the policy and guidelines reflect what the law says. So it's very close to the legislation. It certainly does not detract from what's in the legislative framework.
From what I gather from reading the blues with respect to the hearings you've been having, there has been some discussion about the processing of a request--in fact, two requests. And there is an issue about what Mr. Kratchanov alluded to, that there seems to be one document that was handled differently over time.
The guidelines that we provide are with respect, in this particular case, to how you would apply section 18 of the Access to Information Act, which has to do with the Departments of Foreign Affairs and National Defence.
Other exemptions that were mentioned concerned section 13, which has to do with documents obtained in confidence from another government; I believe section 17 was mentioned, concerning safety of individuals, although I'm not sure whether or not that provision would actually apply; and section 21, which is advice and recommendations.
I understand, again from the hearings, that those exemptions were applied to this file by Foreign Affairs.
What we provide, as far as guidance goes, is interpretation about, for example, injury and how to interpret those various provisions. It also lays out a framework as to roles and responsibilities, for example, what the ATIP coordinator should be doing.
It covers the scheme, and that's why it's so voluminous. It covers the whole scheme. In fact, it's a manual right now. This is what the ATIP community uses in doing their job, so it's quite extensive.
That's supported by what we call a cold call function. Mr. Alexander referred to the fact that we field approximately 58 questions a month to try to assist the ATIP community.
That's the way I would sum up, in broad strokes, what the guidelines are, what the policy is, and what we do.
Thank you to our guests.
I am substituting for my colleague Mr. Martin. As Treasury Board critic, I have a particular interest in this area.
Starting with Treasury Board, your presentation was clear, but I do have some questions in terms of structure and function. You're responsible for the policy, that's pretty clear. I know my way around Treasury Board, and it makes sense. But I would turn to page 3 of your presentation, where you say that you don't have an audit function in terms of monitoring the act, and you rely on annual reports.
Under the part entitled “The Role of the Treasury Board Secretariat”, you say this:
The President of the Treasury Board, as Designated Minister under the Act, is responsible for developing and issuing policies and guidelines governing the operation....
So we get a picture here that you're not in the minutiae of every single day, keeping an eye on every single file, but you have, if you will, the big picture. That makes perfect sense from a structure and function point of view.
In some of the witness statements we heard here at committee, there were concerns around the policy. We talked about the policy, about exemptions, and national security being important, but....
Well, let me put it bluntly: there seems to be a concern from witnesses and others, and certainly I've seen this, that it's not credible to say that national embarrassment is worthy of a policy for exemptions. Would you agree with that?
In other words, if the government is looking bad on an issue, that's not worthy of an exemption in terms of the policy of Treasury Board. And I'm not trying to.... I mean, I know you're public servants; I'm just saying that's not good enough, that's not a reason for exemption.
:
I hear what you're saying. National embarrassment isn't in that, so I would concur with you on that.
There seems to be a pattern emerging. Certainly, with Mr. Esau, there were some concerns about his case. I'm going to turn to that in a second.
I have in my hand the annual report of the Information Commissioner. As you said in your report, you rely on officers of Parliament, like the Information Commissioner. It depends on whether you're looking at the glass as half empty or half full--mine is at about a third. I guess I look at the report card, and we have some problems. We have to acknowledge them--not exacerbate them, but acknowledge them--and get moving on them.
I look at this report and I see that we have some frequent flyers here. We have the Department of Justice, we have the RCMP, we have PCO, and we have DFAIT--they've gone up from an F to a D, but in my house that wouldn't be acceptable. As a former teacher, I'd be wanting to do some remediation with that student.
I guess I want to know your response to this report. And I know you just got this. How can we do better to clarify this issue of exemptions? I know that with Mr. Esau and others there's a lot of frustration. There seems to be a lot of “guess what I'm thinking” going on. I'm just curious as to your response, as a policy developer--not you personally--in terms of where you're going with this report. What is the response to date?
:
Yes, Mr. Chair, I can begin with that, and Mr. Lemieux may have some more details to add to it.
Generally, when one looks at the manual, and Ms. Sabourin was referring to the document that we distributed to you today, and as Mr. Kratchanov indicated in his opening remarks as well, this isn't a science, but there's an awful lot of judgment there. However, it's judgment that is circumscribed by the legislation, the regulations, and then the case law that has evolved since 1983.
Generally, access to information professionals start off in some assisting role, possibly in a larger department, or they may actually be working in a sector within a department coordinating with the access to information coordinator, the lead, on it. They will develop their expertise primarily through experience, through working with other professionals who know the practice better, and then through the training sessions that we offer, the various pieces that are there.
It is something that really requires us then to grow access to information professionals, because it's based on our legislation. The legislation differs in provinces, so it's not even something that's necessarily easily transferable from another jurisdiction.
This is something where our ATI coordinators and the ATI leads in departments really grow, and it's something we are focusing on pretty strongly right now with this expansion of institutions due to the revisions under the Federal Accountability Act. It is putting greater pressure on it, and that is one of the reasons why we've run 17 training sessions so far this fiscal year, just really to bring more people up to speed and help them move up that learning curve more rapidly, which is primarily, it seems, an experience learning curve. It's a case of “I've applied this exemption before, this exclusion before, this injury test before; I've got experience in it, or I phone people who have more experience in it and work on it that way.”
So it is very much growing a profession that doesn't exist very strongly outside the federal government and its agencies.
Thank you, again, to our guests.
I'm not sure who I address this question to. Maybe I'll pose it and decide. I think it might be for my friend at Justice.
At DFAIT, or for that matter at any other department, what are the provisions, if you will, for quality control, essentially, to ensure that Canadians get the information they're entitled to by law?
We have the Information Commissioner, but in terms of the department—I guess I'm going back to this business of a report card here—is there an independent audit at the year's end? Is there a review by some other decision-maker? Sometimes, in order to shed some light on problems or concerns, you might need that--getting a second opinion, if you will, which we all do when we're not sure of something or we want better service.
Is there an independent year-end audit ? Is there a review by some other decision-maker, and then getting a second opinion, where there are difficulties or controversial documents? We've heard references sometimes to other agencies.
I don't know if that's my friend at Treasury Board or Justice.
:
Maybe I'll just leave this. This might be just a comment from me, and if you see it as a question, then so be it.
What I'm seeing here is that we have the policy oversight obviously taking in information and perhaps making some suggestions on guidelines. We have Justice keeping an eye on things. In terms of an actual independent audit function, that's what this is, but there seems to be a gap, and that is, what happens after this?
We talked a little bit about you talking to people who are in the ATI community, and keeping an eye on the court, obviously, and you need to follow up on those things. But in terms of an audit within the department to make sure their performance is brought up to service levels, I'm going to say that I think there's a gap. And I'm also going to suggest that....
I remember when I was on the Bill committee with my colleague, Mr. . We said at the beginning, and then we were promised by the government, that we'd have ATI reform.
Maybe I'll put my question to my friend from Justice. Do we have, from the minister, a document on ATI reform?
My colleagues have given me the Liberal slot, so I'll ask some questions.
Forget about exemptions. My interest at this point is the process. We know for a fact that there have been numerous Afghanistan reports prepared. We know this because Professor Attaran received a disc with about five years' worth of them. So we know that is a fact.
On March 14 of this year, DFAIT received a request from Mr. Esau, who used the following words:
A copy of DFAIT's 2005-2006 annual or semi-annual report, or the 2006-2007, if it's been drafted, on human rights performance in countries around the world.
I referenced before chapter 2-4, page 2 of the guidelines, and it says:
Often the request is expressed in broad terms because of a lack of knowledge about government operations. An employee of the institution experienced in the area of access should contact the requester to clarify the nature of the request or help the requester to understand any difficulties which may be encountered in processing....
We all agree, as you've said so often, that Madame Sabourin is an experienced person. She did not follow, as far as I can see, this guideline, because eight days after the request was made, she answered by saying:
Please be advised that Canada does not produce an annual human rights report analogous to the reports produced by, for example, the United States or the United Kingdom.
And here's the important part:
Therefore, no such report on human rights performance in other countries exists.
That's exactly what she said seven days after the request, clearly not following the guidelines by calling Mr. Esau and asking him what he meant.
Am I seeing the facts as you see them, or do you see them in a different way?
I just want to follow up on my line of questioning from the last round. One thing I want to state is that notwithstanding the importance of having experienced people, for some it can be at times a double-edged sword in terms of perception. And no, I'm not casting aspersions on anyone here, or accusations, but you could see that someone could be very experienced at concealing information as well as revealing. It could go both ways in terms of someone's experience. You know the tricks of the trade, so to speak.
At any rate, we monitor delay. We look at timelines. The policy certainly outlines the importance of looking at timely response. But to go back to my question, we don't really have a mechanism for what I'll call quality control. Let's talk about numbers, for instance. What are the percentages of correct decisions made? You know, look at the positive. Look at that facet--not just the time, but the content.
I guess my question is on the propositions, on the suggestions as to possible policy or procedural or legislative reform that might deal with this issue of quality control. As the chair mentioned earlier, this question we had posed by Mr. Esau, on chapter 2-4, is really critical. What we're talking about here is this: do you understand what I'm asking for, and if so, why aren't you forthcoming?
So perhaps I can ask you for some suggestions or ideas on policy on procedural reform and legislative reform that would help deal with this issue.
:
Mr. Chair, maybe I'll start with that.
I would like to just mention broadly the community and those ATIP coordinators. Before I had this role, I was in a department working with ATIP coordinators as one of the subject matter experts in a program area. Since I've been in this role, I guess I've been extremely impressed. Those ATIP coordinators are very much the champions of access to information. They are the community that's really, really pushing for that.
So I couldn't necessarily agree with it being a double-edged sword. I think they really are probably some of the best allies. They are the ones working with their departments to make sure it does work the way the legislation says.
In terms of policy and legislation and the possible reform that we could do, I would hate to actually start to make that up as I'm sitting here, but I know we carry out conversations with the Information Commissioner. With the new Information Commissioner, we've had some very good conversations already in terms of how we can work cooperatively.
In the context of the legislation, those complaints that come in to the Information Commissioner are extremely valuable sources of things that haven't worked in individual instances. That's about 5% or so, something like that. That's a good sample there. As well, the data that we would be gathering as part of...[Technical difficulty--Editor]...the statistics that we will be gathering, we're also looking with the Information Commissioner on what sorts of statistics would be valuable so that we can actually start to get insight into where things aren't working, either from his perspective or from the perspective of citizens and businesses as they're going at it.
:
Thank you, Mr. Chair, for accommodating this question.
Mr. Tilson stole my notes and asked the question I wanted to ask, but I think for both he and I this whole idea of procedure and how this works is important.
As a committee we were on a whole other stream. This event came along. We're trying to study it. Now it appears as though investigations are going on, certain things are happening. Perhaps we're slowly running our course on this, I don't know. But as a committee, this has introduced us to some new realities. For instance, if I hear the word “redacted” one more time, I've learned I probably won't be able to stand it.
But obviously there are some flaws I think that we have seen as a result of this, the last few weeks of testimony we have had. One was indicated by Ms. Sabourin, who said that when a request came in she tried to follow certain guidelines that come from the Treasury Board. As a result of some of these guidelines perhaps not being updated, she voiced that she thought they should be. I think you, Mr. Alexander, said you concurred with that. I think Mr. Dewar was talking about an audit and similar types of things. I presume that is going to be done. After this particular case is over, we have to move ahead as a committee on to other things. But we want to make sure we tidy up whatever is seen to be perhaps some weakness here.
Could I ask you, if you were going to update these guidelines, how long a process that is? I'm not going to ask you what you do because I think Mr. Lemieux answered some of that.