JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, April 21, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): All right. These are estimates and today we have with us from the Offices of the Information and Privacy Commissioners of Canada, John Grace, commissioner, and Mr. Alan Leadbeater, deputy commissioner.

Welcome, gentlemen.

Mr. Grace, you know the drill.

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[Translation]

Mr. John Grace (Information Commissioner): Madam Chair, members of the committee, I thank you for inviting me here this afternoon. It gives me great pleasure to be here,

[English]

especially because, after 15 years of appearances, it will be the last time I will have the privilege of coming before this committee—always an exhilarating and constructive experience.

The Chair: Haven't you told us that before?

Mr. John Grace: I have told you that before, but my intentions were always good.

The Chair: You keep trying to leave, don't you?

Mr. John Grace: As things now stand, Madam Chairperson—I refuse to use the term “Chair”. You are anything but an inanimate object.

The Chair: Mr. Galloway, who used to be on this committee, calls me

[Translation]

"madame le fauteuil".

[English]

Mr. John Grace: As things now stand, the committee should know my last day of work will be April 30.

I thought that since yours is a new Parliament and your committee has many new members, a quick description of my role might be helpful. You will find a fuller description on page 5 of the performance report.

As many will know, the Information Commissioner is a parliamentary officer reporting not to the government, not to a minister, but to Parliament.

My annual report, the final one coming in a month or so, is made to Parliament through the speakers. Independence and perceived independence are essential to the credibility of the office. The Information Commissioner is an ombudsman in the classical meaning of that term. He receives complaints from persons who believe they have been denied rights set out in the Access to Information Act, notably the right to receive in a timely fashion—the law says 30 days—records they have requested from federal government institutions. Some 158 are covered. Last year, some 15,000 formal access requests were made to these institutions.

The Information Commissioner cannot order any government department to release information. He may only recommend release using the provisions of the access law to argue his case for disclosure. Of course, not all complaints are supportable.

From the 1997-98 statistics, 1,378 complaints were received by my office and 968 were resolved by complainants receiving all or part of what they had requested. Only three cases resulted in recourse to the federal court. I'm proud of that, because when a commissioner is forced to take a case to court, it is in effect a concession of failure of the negotiation process. Parliament put a commissioner in place to avoid access to the courts, so to go there should be a very rare and important occasion. Last year only three cases got to court and 347 complaints were held to be unsubstantiated; that is, my office agreed with the government department that information was legally exempted. Some 60 complaints were discontinued.

But the full importance of the Offices of the Information and Privacy Commissioners of Canada and the access act is not measured by numbers of formal requests made. Informal access is much to be preferred.

The access act, above all, is Parliament's commitment to open government, to transparency, to a citizen's right to know what his or her government is up to. An effective act means greater accountability by government at all levels, from ministers and public servants. It means a more informed public, even a shift of power from government to the governed. The cliché “information is power” is right. Finally, access to information holds the promise of higher ethical standards, if sometimes only from a healthy fear of exposure.

But enough theory. Let me draw upon my eight years of experience and on-the-job training to share with you a legacy of lessons to build upon.

Lesson one is, don't create an oversized bureaucracy. An effective ombudsman's office is one that stays small and does not become a large, faceless bureaucracy. You can't put layers of public servants watching over other public servants.

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I'm proud that our access management team here consists of only three persons—Mr. Leadbeater, Mr. Dupuis, who is director of complaints, and myself. But due to budget cuts, the office has moved from being lean and mean to perhaps being a little too lean to be mean. That's original; I didn't read it anywhere.

Here are the statistics. Since 1990, the yearly number of complaints to my office has increased by almost 300%, from 550 in 1990-91 to 1,406 this year. I'm also proud to say that during the same period, the number of employees, 33, has remained precisely the same while non-salary operating funds have been reduced by 60% from $731,000 to our current level of $295,000. I think our office is an enormous bargain for the citizens of Canada.

I have to say that with only a modest increase—three investigators, perhaps four—the timeliness and thoroughness of our investigations stands in danger of being compromised. As it now stands, it takes us on average 4.16 months to complete an investigation. That's too long. It's below the goal recommended by this committee a long time ago, but we can't always be masters of our own timing and agenda. It takes two to tango in these matters, but we aim for three months. We're down to 4.16, which is an improvement, but the backlog should be decreasing, not increasing. This year our backlog grew to 431 cases compared to 387 the year before.

So that's the first lesson. Keep it small, but not too small to be effective.

Two, the law has the fundamentals right in the balance between openness and privacy, for example, but there is a need for modernization. The private members' bills, which I'm glad to acknowledge, all touch upon needed amendments, such as broader coverage, penalties for flagrant abuse of the act, or flagrant destruction of records, and a general update brought about by technological changes and the experience of the past years.

I'm glad to see that more and more members of Parliament are using the law and showing interest in its good health. This increasing interest level by MPs is one of the most positive stories of my eight years. MPs who use the law know how it works or how it doesn't work. I think MPs are finding it a better way to obtain information than certainly oral questions and questions on the order paper.

Lesson three, failure to meet the law's response time, continues to be the government's biggest problem under the act. Of all complaints this year, 588, or 44% of the total of 1,378, were complaints of delay, that is, the government department had not responded to a request in any way within thirty days. Virtually all these delay complaints were of course well founded.

This delay problem is particularly perplexing and inexcusable, because the access law has, after all, very generous extension of time provisions. Government departments may extend the thirty-day response period for any reasonable additional period in order to conduct consultations, which are often necessary, or to search through large volumes of records, which is time-consuming and expensive. Yet departments consistently fail to meet either the original thirty-day period or the extended periods they may sometimes choose to apply.

Over the past two years, the office has been working with the worst offenders. I have to name them. I named them in my annual report. They are: the Privy Council Office, the Department of National Defence, Revenue Canada, Citizenship and Immigration, and Health Canada. The good news is that it would appear that the senior levels of these departments have finally received the message and are taking action to correct the problems. By next year, though, the statistics will show whether the expressions of good intention have been translated into meeting response deadlines. I am optimistic. I think we have finally engaged the commitment of senior people in these departments.

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Moving to the fourth lesson, a real shift from the culture of secrecy to the culture of openness in government has not yet occurred. A strengthened law will help the cause of openness, but leadership from the top is essential. I believe prime ministers and senior government leaders have not given tangible enough signs to the public service to make the law work, to make the public service increase its commitment to the law. When they see no particular enthusiasm for this law from their deputy minister, are public servants going to risk being heroes in their departments by releasing information that may perhaps cause temporary embarrassment? I don't think it's too much to ask for this kind of leadership from the top.

The President of the United States and the Attorney General of the United States have done it. So did the Premier of Alberta, in Canada. I should say that before that, the new Prime Minister of Great Britain, Tony Blair, in presenting a remarkable white paper outlining his government's proposed new access law, has committed himself personally to an open government. I pay tribute to the Premier of Alberta, who has shown personal commitment to the freedom of information law introduced a year or so ago in his province. I think it's no coincidence that the law is working probably better in Alberta than elsewhere in Canada.

I'll note a sad subject: record destruction. I'm glad to report that no new incidents of wrongful record tampering and destruction have come to light in the past year, yet the Canadian Blood Committee and DND Somalia record scandals have taught us a bitter lesson. The access law is toothless when it comes to punishing wilful acts of disobedience. I reiterate my call for tough penalties, I support the private members who have put such a proposal into bill form, and I congratulate the government for signalling its support for the idea.

Perhaps some employees feel motivated to play fast and loose with the rules only because, as I've said before, there is not a clear signal from the top that access is a serious priority and the law must be obeyed in letter and spirit. In Canada, the degree of the silence has been somewhat deafening. That silence, I'm afraid, sends a message to the bureaucracy that the culture of secrecy is still alive and well, and that loyalty perhaps could be more important than openness.

Finally, on access and the courts, there is good news here. This year brought strong opinions in support of freedom of information from the Federal Court and the Supreme Court of Canada. I am particularly pleased that the Federal Court struck out as having no possibility of success a challenge against my office by the Department of National Defence. DND asked the court to rule that it did not need to answer access requests from an individual whom it considered to have improper motives. As well, DND asked the court to rule that I should not investigate complaints from this person of whom DND obviously doesn't approve. The court's ruling was swift and clear: the perceived motives of access requesters are irrelevant. The requests should be answered and the complaints should be investigated. To ensure that DND got the point, punitive costs were assessed against that department.

The Supreme Court of Canada this year made a strong statement concerning the role of the access law in our system. The court found that the access law serves a vital role in preserving a healthy democracy. That's a Supreme Court decision that no one is going to quarrel about. It's a court order. Transparency, the court ruled, is essential to accountability. Moreover, the court ruled that this value of accountability supersedes some of the privacy rights of public officials. Because they administer public funds and wield power over our lives, public officials are not entitled to hide behind self-serving assertions of privacy, according to the Supreme Court.

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I thank members of this committee for your support for the office and the access law over the years. I encourage you to hold ministers and senior bureaucrats who come before you accountable for their performance in respecting the access law. But, as they say, much more important than changing the law is changing attitudes. I know you can help to do that.

Thus ends my message, my sermon. Thank you very much. I am ready to receive your questions.

The Chair: Thanks, Mr. Grace.

I'm going to start with Mrs. Finestone today, because she has to leave early.

Hon. Sheila Finestone (Mount Royal, Lib.): Thank you very much, Madam Chair, and thank you, colleagues, for allowing me to go first.

First of all, Mr. Grace, it's really a pleasure to see you again. I've seen you off and on for the last maybe nine or ten years, I think. I remember you as the first privacy commissioner, and now you are in the position of having held the responsibility for access to information. I can't think of anyone who is better placed to take a look at both offices, as well as at the Official Secrets Act perhaps.

From your experience, from the reduction in staff, from the view that you have always presented that a transparent government is a democracy in action, could you perhaps share with us that we could better serve the public by being open and transparent? Would it be a good idea to put the role of the privacy commissioner and your present role together? How would that impact on the Official Secrets Act? Does that have a role to play? Last but not least perhaps, in your view, what would be the most important changes that you would make if we were to put them together? That would include, of course, the financial needs you have already pointed out.

Mr. John Grace: Thank you for those good questions, Mrs. Finestone. I'm going to answer to some length, but not too long, so don't worry.

Mrs. Sheila Finestone: Not too long. I have to catch a plane. If I have to, I'll read Hansard.

Mr. John Grace: No, don't worry.

It's clear to me, and has been confirmed by the courts, that the two values—access and privacy, open government and protection of personal privacy—are equal, fundamental, important values. I start there, and I think you do too.

I believe strongly in the advantages of joining the offices. In my view, a merger certainly would end the anomaly of two offices and two commissioners. There must be some message in the fact that no other jurisdiction either in Canada or abroad, so far as I know, has adopted the two-commissioner model. Other provinces have studied it. Recently, it was Alberta and British Columbia. They have concluded one commissioner's office. Quebec, Ontario, everybody says one.

I think the message is that a single office unites the oversight of what is after all, despite surface appearance, sometimes an appearance of conflict. People ask how you can put together the values of privacy, which protects information and access, which tries to get information out. In my view, these laws are essentially complementary. There is no more a conflict between privacy values and openness values, between the Privacy Act and the Access to Information Act, than there is within the access law itself. In access, we are forced to balance values that are sometimes in conflict. We make a judgment in cases in which they are in conflict.

As a kind of corollary to that, a single office will end the unhappy situation of conflicting recommendations to government by two commissioners. It doesn't happen too often, but it does happen. I think it certainly would end the scandal, rare though it is, of two commissioners, two officers of Parliament, after all, taking opposing sides before a Federal Court judge.

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A single office would end—and I think you've indicated this, or somebody has, as Mr. Gilmour and I were chatting—the continuing public confusion over the roles of each office. I continue to be astounded at the number of people who really don't know what the fundamental difference is between the two offices.

This joint office would offer one-stop shopping. A merged office would also force the officeholder—and here, by the way, I can be wonderfully disinterested, because I'm going, you see. My position is not a self-serving one. A single office would avoid the invidious situation of a department, a minister, receiving, again, conflicting advice from two commissioners. I've had ministers and deputies say, “John, why don't you and the privacy office get your acts together? You say release it and they say keep it in, so no matter what way I go, I'm going to be in trouble with one commissioner or another.”

I think there should be this one independent person, this one officer of Parliament, who will carry the can for a decision, and in this particular case, for what value, the important value of privacy or the important value of openness, should prevail, for what case there should be an overriding public interest value that would override the personal privacy value.

It's rare, but such a decision occasionally has to be made, and I think it's much better that it be made by one person, that one person takes responsibility for it. The government may or may not accept that recommendation—it's only a recommendation, after all—but it's cleaner. And if it goes on to the courts for adjudication, then let it go on to the courts.

I think those are significant and sort of philosophical reasons for a single office. On a practical level, a single office will result in significant savings. In my view, it could easily be $500,000 a year forever from the base, notably in the elimination of extra management personnel, not only through the elimination of a single commissioner and the usual trappings of a commissioner's office, but through cutting back on the number of lawyers, directors, and policy advisers. I think we can—

Mrs. Sheila Finestone: Mr. Grace, I appreciate your candour and I know that your experience has been of value to all of us, but in your recommendations—and I forget where it is in all the papers I read—you discussed the fact that you felt strongly that acts or omissions intended to thwart the right to access should be made an offence subject to a penalty of up to five years in prison.

Mr. John Grace: Yes.

Mrs. Sheila Finestone: Yet you just said—unless I misheard—that, after all, if we put the two offices together...what you are bringing forward would be a recommendation and then it would be up to the minister or to the government to make the determination.

If you feel that one should go the route of “up to a prison term”, then it's more than a recommendation, isn't it? Your decision that you render would be more than a recommendation; it could lead to a prison term.

Mr. John Grace: The charge would be laid in the usual way. It wouldn't be laid by a commissioner.

Mrs. Sheila Finestone: How would the charge be laid?

Mr. John Grace: It would be laid by the Attorney General of Canada if it concerned an offence against the Criminal Code.

Mrs. Sheila Finestone: Am I allowed one last question?

The Chair: Go ahead.

Mrs. Sheila Finestone: My last question...and I think you may have heard me ask this question before, because I find it quite outrageous, frankly, talking about privacy, because once you invade a person's privacy and it's out in the open, you can't recover that privacy.

The government decided it would protect its rights under the Unemployment Insurance Act by using Customs forms, so therefore they could trace those people who were abusing.... They're beside the telephone 12 hours a day and they would trace the people and recover moneys that had been turned over to those people. I understand the government's will to not have any fraudulent undertakings. On the other hand, I found that an incredible invasion of privacy.

How would you determine an access to information conflict with a personal privacy issue in this kind of circumstance in a government office?

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Mr. John Grace: There are, as you know, fundamental principles of fair information practice, and one of those principles is that information collected for one purpose shall be used only for that purpose. What the government is doing in the case you describe is collecting information for one purpose but using it for another, I take it—I'm not familiar with the case.

We could handle that by what's called “front-end notification”. You tell people who give information for a particular case that this information, they should know, could be used to detect economic fraud, or whatever it is going to be, and the person may have a choice, or may not have a choice—probably doesn't—of giving that information.

But look, it's up to Parliament to decide. If Parliament passes a law that says in this case you must give this personal information to a government agency, and that agency has the right under the law, and everybody knows about it, to use that information to detect fraud.... If Parliament thinks such an invasion of privacy meets a higher national purpose, a public purpose, that's up to you folks around this table to decide.

Mrs. Sheila Finestone: Has the minister been consulting you on the revisions they are doing to both the Access to Information Act and the Privacy Act, as well as the Official Languages Act?

Mr. John Grace: Certainly not on the Privacy Act. No, I haven't heard. There was some consultation about change to the Access to Information Act a few years ago, but I've heard nothing since. I made my recommendations in private to a committee of senior deputies.

Mrs. Sheila Finestone: Fine. Thank you very much, Madam Chair.

Thank you very much, Mr. Grace. I wish you a very pleasant and joyful retirement.

Mr. John Grace: Thank you, Mrs. Finestone.

The Chair: Thank you, Mrs. Finestone.

Mr. Gilmour.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Grace, for appearing before us. Your timing is right on, I might add. Colleen Beaumier's private member's bill, a votable bill, which is on just what you were saying about the tampering of documents, is up today, so we'll be voting on it today. My private member's bill deals with crown corporations. As you are aware, some crown corporations are under the access to information laws and others are exempt, like CBC and Canada Post, for example. That comes up tomorrow.

So we have two ATI bills that are votable, private members' bills coming up in the House, but what that points out is that it takes private members to introduce these bills, not the government. I see you in the unenviable spot of embarrassing the government, and in fact you could have your funding cut out from underneath you as a sort of penalty, shall we say? But you've gone through a number of administrations, and I'm not taking a shot at this government. Those are the realities of your job.

Here's what I would like to know. In your past, have you ever been coerced or threatened, or has anyone basically tried to manipulate you, anyone from either the government or the bureaucracy, in any government?

Mr. John Grace: Let me say quickly and confidently, no, I have never been coerced. I've operated, as I said, completely free from political interference.

I do not feel that my office resources have been cut for spite. We took our cuts like everybody else, our 3% cuts along the way, and we absorbed them. I would be the first to squeal to Parliament if I felt the government was depriving us of sufficient resources to do the job Parliament has set out for us.

Certainly, we have had tough discussions on certain issues with senior public servants, but all those disputes are over a matter of principle, and I have no complaint about the way my office, as an office, has been treated by government.

Mr. Bill Gilmour: I really appreciate that straight answer.

You mentioned the PMO and departments. Just for my own information, where do you find the most difficulty or the most resistance? Is it in the government itself—you've been through a number of administrations—or is it in the bureaucracy? Is it a combination? Where do you see the roadblocks?

Mr. John Grace: Let me say that I have a much easier time with ministers and members of Parliament than I do with the senior bureaucracy. You guys are way ahead of them as far as openness is concerned. You really are.

Mr. Bill Gilmour: That's good to know.

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The Chair: It's nice to have candid answers. They may be a little disappointing for Mr. Gilmour, but at least they're candid.

Voices: Oh, oh.

Mr. Bill Gilmour: As you said, you're stepping down. It's going to be a hard position to fill. How do you see basically the vetting of the individual who's going to come in as your replacement?

I ask that question from the point of view—

Mr. John Grace: What was that word?

Mr. Bill Gilmour: “Vetting”. Because it could be a position such that the government could put a person in there who was not forthright, for example. What I'm getting at is that in the American system, where senior appointments are put before committees, put before government, there is an opportunity for people to explore the person's background, explore their views. That, as I understand it, isn't in place at the moment.

Do you see that as a need? Do you see that as a vehicle that should be at either the committee or parliamentary level to put people in these sensitive and very tough positions so that they have the support of all parties, just because of their high stature and unbiased nature?

Mr. John Grace: Parliament does have a say in the appointment of an access to information commissioner or privacy commissioner. The names of the government's nominees go before Parliament. Parliament is required, before these people are put in the position, to pass a resolution supporting their appointment. That's what Parliament has here.

Parliament can, on the floor of the House—and perhaps that's a rather unwieldy place to do so—raise questions about the person's competence or qualifications. There's no provision made in Canada for this committee, for example, vetting the new person, hearing his or her views around this table. Perhaps that would be a useful development. But don't feel that you are without means of influencing the appointment.

I agree with you that the appointment of a new commissioner of access or privacy should be all but unanimous. I think it would be a terrible way to start a parliamentary appointment. It's seven years, after all. It's a no-cut contract. It takes a resolution from both Houses to fire commissioners.

So I think an officer of Parliament should start with unanimous, preferably, or almost unanimous, support of the whole of Parliament. You do have some control there.

Mr. Bill Gilmour: I appreciate your answer.

Thank you, Madam Chair.

The Chair: Thanks, Mr. Gilmour.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you.

My concern is in the area of people who make frequent requests. I'm not that aware of the federal legislation, but I know in my province, in Ontario, the provincial legislation has no safeguard against what we call “frequent requesters”. We have other names for them as well, but that's the one we use when we're trying to be polite.

My personal experience involved an individual incarcerated at the Penetanguishene Mental Health Centre. The Ontario commissioner at the time told me this one individual was responsible for something like 75% of the workload of the Ontario office. In my home municipality, an example of the type of request would be for all of the building permit applications in the town of Penetanguishene for the years 1966-1990. Obviously, that's useless information to someone incarcerated in a maximum security facility.

First, does the federal legislation have any protection against that situation, and if not, what's your opinion on that situation?

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Mr. John Grace: I've heard a lot about frequent requesters over the years and I know the case you speak of. One way to deter frequent requesters is to charge them. The federal act, as you know, does require a payment of $5. The $5 is not a money maker for the government, but it's there to help stem the tide of the kinds of requests we're speaking of. There's no specific provision in the law, as it now stands, to take care of what I think would be described as vexatious and mischievous requests.

I have no real objection to changing the law to put such a condition in there. I've recommended that, but with the qualification that if you allow a department to control the number of requests, first of all there should be provision made to appeal to the commissioner, because we have cases of departments, not too far from home, who decide to hate a requester, for good or perhaps bad reasons. I think there should always be a safety valve there so a department can't get rid of people who they think are just bothersome. The commissioner's office would say “No this is not a malicious or bad person”. The other thing is to charge.

I would favour that kind of provision and eliminate the $5. I wouldn't want the rules to deter legitimate requesters.

Mr. Paul DeVillers: Under the provincial legislation you have the right to ask for a deposit for photocopying, expenses, etc. With that type of ridiculous request the answer would be “Fine, send us a $1,000 deposit”. This individual didn't have the funds, so that's how he was handled. But it's still a very dangerous situation to have that legislation where there is no other way of dealing with an obviously vexatious and frivolous request.

Mr. John Grace: You remind me that the same provision.... I guess it does exist. The federal act provided for legitimate charges, and I believe in legitimate charges. I don't believe the farmer in Saskatchewan should be paying for fishing expeditions by big companies, newspapers or individuals, however motivated. The act entitles you to get five free hours of search time for your $5. Then, if departments can justify charging more for involving more people or having a huge volume of records, I say charge. Again, the commissioner's office is here to prevent excessive charges being used as deterrents. Again, in Canada, under the federal act, the complainants or requester can complain to my office about the charges. We tend to be generally supportive of the charges. I have no complaints about us being crazy about that. We will support legitimate out-of-pocket costs.

Government departments should manage their records better. It's a nice balance sometimes. I don't want requesters being forced to underwrite records management. But you have to keep a balance in all these things.

The Chair: Thank you, Mr. DeVillers.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you. I'll be fairly brief, because, like Mrs. Finestone, I have to run, but I do have just a couple of questions.

When you gave us a list of departments where you indicated there were some difficulties—Privy Council, Department of Defence, Revenue Canada—was that in order of difficulty?

Mr. John Grace: I don't know. We have an honours list every year in our annual report. I'll talk to my colleague, Mr. Leadbeater. It's pretty close.

Mr. Peter Mancini: They're all pretty well tied for it.

Mr. Alan Leadbeater (Deputy Commissioner, Office of the Information Commissioner): This list shows the departments we're working carefully with to solve their delay problem. We also have a list in order of priority that I could give you of those against whom most complaints are made. That would involve delays and other types of complaints. I'll have to provide that list to you separately.

Mr. Peter Mancini: If you could.

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Mr. Alan Leadbeater: It involves the same institutions, but I can't tell you which is number one and which is number five. I have that at the office, and I'll be happy to provide it to you.

Mr. Peter Mancini: I have some particular concerns about Revenue Canada.

Mr. Alan Leadbeater: Sure, I'll do that.

Mr. Peter Mancini: It has concerns about me too.

Some hon. members: Oh, oh.

Mr. Peter Mancini: No, it doesn't.

I guess the next question is, what kinds of steps are you taking? How are you dealing with that problem with those particular departments? How do you help them correct the deficiencies?

Mr. John Grace: To determine if there's a real problem, we sometimes invite ourselves in and audit the whole system of how requests are handled from the time they're received and the layers of approval necessary before the records are released. We spot problems on our own because of the number of delay requests coming in. Often the departments welcome our assistance and we don't have to shoot our way in.

The key thing is getting the attention and the commitment of the senior personnel, and I'm talking about the deputy minister and that level. We have to get them personally engaged, help them realize there's a serious problem, and get them engaged in spending the resources and putting the systems in place to end these outrageous delays. We're pleased to work with them. It's not an adversarial system, believe it or not, though I sometimes seem to talk tough. When Mr. Dupuis and his people go in and spend time there, it's a collegial situation. They work together. I'm an eternal optimist, and this time I'm a little more optimistic than usual.

Mr. Peter Mancini: Thank you.

The Chair: Thank you, Mr. Mancini.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I would similarly like to go to your honours list, in particular the Department of Citizenship and Immigration, and ask you what the categories of problems are with respect to that department.

Mr. John Grace: I will refer you to Mr. Leadbeater.

Mr. Alan Leadbeater: With Citizenship and Immigration, as with most of the departments on the list, the problem tends to be meeting response times, not the problem of being overly secretive. Most departments now are able to apply the exemptions in the act responsibly and don't over-blanket the cases.

Citizenship and Immigration has problems with the spread-out nature of its business. The matter may involve records from all around the world, and retrieving those records may be difficult and time consuming. It has work to do in order to manage its ordinary workload. We don't expect departments to be able to handle unexpected peaks. That's why they have the extension provisions.

Mr. John McKay: Are there types of files on which it is not giving timely response?

Mr. Alan Leadbeater: They include everything from individual files to policy files. They don't fall neatly into one category. It's one department that has at least one frequent requester—what we call a bulk requester—and that is actually motivating the department to become a little more informal in its disclosures. I think it's realizing this requester is getting the information and it's not a frivolous request.

Perhaps it should be putting it on line in a database and making it available to others. Lots of immigration consultants and lawyers are interested in knowing what the department is up to, what its quotas are, and what its various policies are. I think the department is learning, through access, to be more proactive in disclosing.

Mr. John McKay: I understand certain lawyers are using the act to access their own files. They cannot get timely responses from the department on files with which they have a relationship and they find it more useful to go through access to information. Is that your understanding?

Mr. Alan Leadbeater: That's true. They are using that information to get their clients' files when they're involved in—

Mr. John McKay: When they're accessing those things, is the liberty of the citizen in question?

Mr. Alan Leadbeater: Yes, sometimes it is.

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Mr. John McKay: I see. So there's a compounding problem here: not only are we having failure to provide time to responses, we are also involving the liberty of citizens and possibly the liberty of people who aspire to be citizens.

Mr. Alan Leadbeater: Yes, but in our office we try not to get entangled in the purpose of the request. Yes, it may be to use it in a court case or a legal proceeding before the Immigration and Refugee Board and so forth, but we just try to hold the department's nose to the thirty-day requirement, to meeting that requirement. For example, if we thought one person needed the information more quickly than another and we organized our own resources that way, we would be making mistakes. We take everybody as though they're the same, as though they have the same—

Mr. John McKay: It doesn't matter whether it's an issue of liberty of the citizen or whether it's just a case of where my file is.

Mr. Alan Leadbeater: Exactly. We try to encourage the department to obey the law, and it doesn't matter what the purpose is.

Mr. John McKay: What's your relationship, if any, to CSIS?

Mr. Alan Leadbeater: CSIS is covered by the legislation. It is very responsible and professional in its administration of the legislation. You may be surprised to know that a security service actually releases significant amounts of information. Of course, it does not release information about its current targets, nor will it confirm or deny whether or not individuals are targets. I think we can all understand that. Probably because it's in the law enforcement area next to the RCMP, we find it's one of the better citizens under the Access to Information Act.

Mr. John McKay: If Immigration Canada is doing a security review of a potential claimant coming either from the refugee stream or from the immigration stream, the security review obviously gets shuffled off to CSIS. Do you have access to that?

Mr. Alan Leadbeater: If there happened to be a request made to CSIS for the record, and if it was denied and there was a complaint, we would see the record, yes.

Mr. John McKay: What about in terms of timeliness? If I'm making my application to be landed and I'm going through a security check, and if Immigration shuffles it to CSIS, how does your thirty-day act impact on that move from department to CSIS?

Mr. Alan Leadbeater: The thirty days start running from the date your request is received at CSIS.

Mr. John McKay: So you would find it extraordinary if someone complained about a three-year delay in responding?

Mr. Alan Leadbeater: Yes, I would find that extraordinary. It seems to me that a department can at least say no within thirty days. But if you're postulating no response, then no, that would be extraordinary.

Mr. John McKay: What would be the remedy?

Mr. Alan Leadbeater: A complaint to our office, and we would then recommend disclosure by a specific date. If the department refused to comply, we would go to the Federal Court and ask for an order.

Mr. John McKay: How would section 30 or 39 impact upon a proved complaint such as that, or a provable complaint?

Mr. Alan Leadbeater: Section 30 or 39 of what act?

Mr. John McKay: Of this act. Sections 30 and 39 allow the Information Commissioner to make a special report to Parliament.

Mr. Alan Leadbeater: Oh, I see.

In cases where information is denied, the route of choice of the commissioner has always been to go to the Federal Court to seek an order.

Mr. John McKay: But is this particular section to be used for systemic issues? If you were to be made aware of a series of complaints such as what I'm outlining here, is that how you would report to Parliament?

Mr. Alan Leadbeater: Not necessarily. It may be done in an annual report. That section is for when situations of such urgency arise that they can't wait for the annual report. For example, someone raised the question earlier about being starved of resources. If the department decided to punish the office by removing their budget in midstream, we'd have to make a special report to Parliament. That couldn't even wait for the annual report. But systemic issues would normally be dealt with in the annual report to Parliament.

Mr. John McKay: Thank you.

The Chair: Thanks, Mr. McKay.

• 1625

Mr. Forseth, and then Mrs. Bakopanos.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): I will perhaps follow up on Mr. McKay's line of questioning around sections 30 and 39 about the special reports, and also on the ability to initiate a complaint when you're satisfied there's some kind of issue to follow up. I was wondering if you would talk about those sections in more general terms in regard to the past pattern of your office. Is there a history of going down those roads and actually using those sections? If not, why not? What is the utility of those, and have they been used?

Mr. John Grace: I'm going to let Mr. Leadbeater continue, but I can say quickly that it hasn't been used. We've never made a special report to Parliament. I think it would diminish the importance of such a report if Parliament received, say, regular reports from us. I think we should be able to fight our own battles as long as we can, but Mr. Leadbeater may have something to add.

Mr. Alan Leadbeater: On the provision about initiating a complaint, yes, the commissioner does use that section, and not infrequently. In fact, it's used very frequently. We use it whenever we want to go in to look systemically at an organization's process from an audit point of view. If we see that we get a large enough volume of complaints about delays, we'll decide to initiate a complaint and look at the whole system.

Also, the act says that complaints must be made by individuals within one year from the time of their request. If a department has delayed for over a year, and then says to a person that it's too bad, they can't complain, we will then initiate the complaint. We are just not going to stand for that semantic kind of debate, and we'll just initiate the complaint and investigate.

Mr. Paul Forseth: I'll just go at one more question, and it's related to a chart about the cases from 1993 to 1997, the one talking about unsubstantiated cases and discontinued cases. What is really meant by “discontinued cases”, and what's the basis for these cases being discontinued, versus the unsubstantiated cases? Maybe you can clarify that.

Mr. John Grace: Well, they're discontinued by the complainants. The complainant perhaps has somehow received the information or has lost interest in it.

Is there any other reason, Alan?

Mr. Alan Leadbeater: Sometimes a requester may be trying to get the attention of a department over an issue. Once the attention of the department is obtained, the requester will tell us in writing that they wish to withdraw their complaint. That will be recorded in the “discontinued” category.

Mr. John Grace: Perhaps you want an explanation of the non-substantiated ones. A non-substantiated complaint is a complaint where we in fact support the government's position. The government has turned down an application or request for information. The requester is unhappy at being turned down and thinks the department is wrong, so he complains to my office. We investigate the whole thing. We look at the original document, at the records that are in dispute, and we'll make our independent judgment as to whether or not the information that has been withheld is properly withheld under the act.

When we agree with the government, we say, yes, this is clearly information that came in confidence from another government or another province; this is information involving an ongoing investigation by the RCMP, for example; or this is a legitimate cabinet confidence, although perhaps I shouldn't mention cabinet confidence, because that's another big story. But we will say that we agree.

It is interesting that the number of times we agree with the government tends to be decreasing. I don't know how to explain that. It could be that government departments themselves are more aware of what they can withhold properly and what they can't. I like to believe it's that. I don't think it's that we're getting softer. We're getting harder, maybe.

Mr. Paul Forseth: Do the unsubstantiated cases spill over into the area Mr. DeVillers talked about, the area of nuisance, vexatious complaints? Do you have a way of sorting out people using your facility for an ulterior purpose or whatever?

• 1630

Mr. John Grace: We don't sort anybody out. Anybody who complains to me gets a full investigation.

My predecessor in Access was overwhelmed with some 3,000 to 4,000 requests from a single investigator ten years ago. Those requests were not rejected. They were investigated. They led to a reform of Revenue Canada, which was refusing to release advance tax rulings and policies in a systematic way.

But we take every requester very seriously, and I sign every letter of finding that goes out from my office, whether we think the requester is foolish or not.

Mr. Alan Leadbeater: Could I just add one thing, a kind of response to Mr. DeVillers point? At the federal level we've been lucky. We have not actually experienced what could be called a frivolous and vexatious requester. There are bulk requesters, but these are responsible business people who use the act and perhaps sell their services to others to make requests for access to information. We haven't really faced a situation where we've had a complainant who was trying to disrupt the system.

An hon. member: We should maybe transfer our friend to the Royal Ottawa.

Mr. Alan Leadbeater: We're hoping he doesn't get our 1-800 number.

Mr. John Grace: You may be interested to know the kinds of people who do use the Access to Information Act and therefore our office. Only 10% of all requests come from media requesters, and of course media requesters receive lots of attention from the request because they publish the results quite often.

The largest number of requesters are classified loosely, I suppose, as business requesters. Pharmaceutical companies looking perhaps for information about their rival, their competitors, have filed with Health Canada about the results of test product tests. There are also lawyers in the immigration business. Academics use the act relatively in small numbers, 3% or 4%, and the general public most of the rest.

Most people think the bulk users or the main users are media users. They're not.

The Chair: Thanks, Mr. Forseth.

Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Thank you very much, Madam Chair.

I have two questions. One is, were you consulted at all by the Department of Justice in terms of the changes they're proposing to both the Access to Information Act and also the Official Secrets Act?

Mr. John Grace: I just responded to Mrs. Finestone about the Official Secrets Act. We have not been involved with that act at all. As to whether we've been consulted by the Department of Justice about changes to the Access to Information Act, not really. I indicated earlier that I did appear before a committee involving justice and other heads to discuss my views of possible amendments, but we never really were formally told of any proposed changes. I don't think we were, no.

Ms. Eleni Bakopanos: I know Mrs. Finestone did in fact ask you that question, but I wanted to go down the same line of questioning.

You did say, if I understood you properly, that you don't necessarily favour penalties.

Mr. John Grace: No, I didn't say that. I've come to the reluctant conclusion that when records are wilfully destroyed to avoid an access to information request, the possibility of penalties, a sanction—

Ms. Eleni Bakopanos: A possibility.

Mr. John Grace: Yes. You have to—

Ms. Eleni Bakopanos: Case by case.

Mr. John Grace: Case by case, but I can tell you in the few cases we've had I think penalties would be a serious consideration.

I've said before that when this act was passed I don't think Parliament felt that good public servants would ever wilfully destroy records. They never saw the possibility of that. So there was no provision for penalties. Of course, one is always reluctant to add to the Criminal Code, to put people in jail for destroying papers. That's what it comes down to if you don't pay the fine.

So you don't want to trivialize the criminal law, and I don't think we trivialize the criminal law if there are people who cut to the very heart of the access act by destroying information that people have a right to see.

• 1635

Ms. Eleni Bakopanos: You wouldn't see a penalty in terms of firing that public servant immediately or denying him seniority or denying him a promotion instead of going down the route of the Criminal Code.

Mr. John Grace: I would think those would be all exemplary actions that could very well be considered, but in the end it's the Criminal Code.

Ms. Eleni Bakopanos: Okay. So you do want to go to the extent of the Criminal Code. I'm asking the same questions, I know, but I want to know how far to go on this.

My other question had to do with cabinet confidentiality, which you sort of alluded to before. How far should the act impact in fact on cabinet confidentiality? Who will come into politics if they think that for every decision—I know I'm carrying this far—they agreed to, anyone could have access to it. There has to be a level of confidentiality in terms of some decisions made by the government.

We're elected. Every four years the public does in fact have the right to throw us out if they wish and if they're not happy with the decisions we've made. But you have to allow a little margin of manoeuvre, at least at the cabinet level, if at no other level.

Mr. John Grace: It would leave lots of margin there. The act should never interfere with the system of government or cabinet responsibility. I would never think of intruding upon the cabinet decision-making process. We should never even think of using the act as a way of finding out who voted for what.

So I think the heart of cabinet solidarity needs to be clearly protected. You won't get any argument from me.

Where we get the argument is that sometimes the notion of what is a cabinet document is extended rather broadly. Say you really come up with a serious cabinet document. Of course, it's sometimes in the interest of the governor of the day to broaden that. Of course, it's in the interest of an advocate for open government to narrow it. But I think papers that put forward alternatives in a particular case could be released easily without saying who fought for what or who the winners and the losers were.

More than anything else, I want to raise this point. cabinet documents are the only category of records that the Privacy Commissioner and the Information Commissioner cannot see in order to verify that they are what they are said to be. We have to rely on the attestation by the clerk or someone delegated by the clerk to say this is a cabinet document.

They're all honourable people—we know that—but I don't get much comfort in telling a complainant that this is a cabinet document. I have no reason to believe they're not cabinet documents, but I can't see them. As you know, I cannot verify it myself.

Other jurisdictions have given the Information Commissioner the power to see the original documents as any other document. We can see everything else. We can see the most super secret stuff in CSIS anywhere, but we can't see those documents.

We have suggested a pilot project to the clerk. I understand the nervousness down there about opening that up, but we're suggesting a kind of pilot trial to see how it will work. We haven't got very far with it.

But no, you and I are not going to be in any disagreement over protecting the essentials of cabinet government.

Ms. Eleni Bakopanos: One last question. I don't know if maybe it's my ignorance, but what access do we have to Senate documents?

Mr. John Grace: Parliament, including the Senate, is not covered by the law.

Ms. Eleni Bakopanos: Do you think it should be?

Mr. John Grace: I have recommended that Parliament should be covered. I don't think that everything should be covered. I think members of Parliament should be able to protect the correspondence between their office and their constituents, but I think we should know what this is costing Parliament a little more effectively than we do now. I think Parliament should want to be as transparent as it could be, but it shows no indication so far of moving toward that.

Ms. Eleni Bakopanos: So any amendments we make should include opening it up all the way to certain aspects of the House of Commons or the Senate.

Mr. John Grace: I agree. I think they should. I have also even said that the access act should cover the courts. It should not cover the judge's notes or what not, but again, costs and administrative issues should be covered.

The access act should cover the Office of the Information Commissioner. We're not covered, but I see no reason why we shouldn't be. We should set a good example.

Ms. Eleni Bakopanos: Thank you very much. Have a good retirement.

Mr. John Grace: Thank you.

The Chair: Mr. Maloney.

• 1640

Mr. John Maloney (Erie—Lincoln, Lib.): We've talked about penalties, and you've pointed out some very good reasons for the small inquiry on the tainted blood scandal.

Those are extraordinary cases, I would think, or are they ordinary cases? Is this the exception rather than the rule? Do you see in your day-to-day operations whether penalties are required? If we are going to penalize someone, who would it be? Would it be the policy coordinator?

Mr. John Grace: Who do you do what to?

Mr. John Maloney: The coordinator, the access to information coordinator in the department.

Mr. John Grace: To do what?

Mr. John Maloney: I'm trying to find who we're going to point the finger at.

Mr. John Grace: Oh, I see. Okay.

Mr. John Maloney: Would it be the deputy?

Mr. John Grace: I would put the finger on the person who destroyed the records.

Mr. John Maloney: That's the exceptional case, which is a very good reason for it.

Mr. John Grace: And it is exceptional.

Mr. John Maloney: But getting back to my first question, is it routine that there is a problem requiring penalties or is it just an exceptional case?

Mr. John Grace: Exceptional. As I said earlier, we had no case of destruction in this past reporting year. The year before, though, there were three. They were big ones. It was mentioned also that there was one in the Department of Transport.

Mr. John Maloney: It was three out of how many?

Mr. John Grace: There were 1,500 complaints to us. We don't know what destruction might have taken place that nobody caught, but some 15,000 access requests were made. Of those 15,000 requests, 1,500 complaints came here. Only three instances of known destruction were revealed.

So I don't think it's commonplace. I don't want to avoid your question in any way, but I can say that what I worry more about than the destruction is the proud boasts that some people make of not writing things down in order to avoid access to information.

Mr. John Maloney: No documentation.

Mr. John Grace: No documentation. I've recommended—the committee might want to consider this—that decisions should be recorded.

The British, by the way, are coming forward with an act that will get around that problem this way. They are proposing to cover not only written records but information in somebody's head. You can ask for information that you have reason to believe could be in somebody's head. The decisions have to be made, and that's just tough, but that's what they're proposing.

Now back to your question. If a junior employee was ordered by the deputy minister to destroy his records, clearly blame would be shared.

I don't think we should overreact, but on the other hand, the destruction of records goes so much to the heart of this law that we should show our vigorous revulsion at that ever happening. But it's not chronic.

Mr. John Maloney: Should an access coordinator be independent of the operations of a specific department?

Mr. John Grace: Well, that's a good question too. I don't know how it will work. We certainly encourage the coordinators to be professionals, but they are, after all, members of a department, and they're torn with the loyalty that many of them have to access of information. They become believers in access. They're torn between that loyalty and their loyalty to their departments.

I once wrote a letter to a coordinator thanking her for a particularly good job. This was when I was in privacy, as a matter of fact. I thought this would be a nice thing to do. She made the mistake of showing that letter to her boss. Her boss said to her that he wondered whether she was working for John Grace or them.

That's the attitude that's still there, but the coordinators should be as independent as possible. I think they are terribly important people. They see the department as a whole. It should be a career-enhancing move to be a coordinator for a while.

Mr. John Maloney: But how else do you see objectivity and impartiality there?

Mr. John Grace: In coordinators?

Mr. John Maloney: As it exists.

Mr. John Grace: There are some very good coordinators, and there are some others that we may have some problems with. But on balance, we meet with them and work with them. Those with whom we have problems you can count on the fingers of one hand maybe.

• 1645

Mr. Alan Leadbeater: Where there are problems with coordinators, it's usually that the problem is with senior managers. Coordinators understand the realities of their situation. If they're going to be rewarded for being secretive, they'll be secretive.

Mr. John Maloney: Thank you.

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you. I didn't want to let the proceedings end without personally conveying some thoughts to Mr. Grace. This is my 10th year in Parliament, and Mr. Grace has been around ever since I've been here.

I wanted to say that from the perspective of a parliamentarian, you, through your office, have consistently delivered professionally from the beginning. I congratulate you for that.

This is a place where there's lots of political pressure from time to time to do the right thing, and you've maintained a consistent, fair-minded attitude in representing the objectives of Parliament and good governance. I wanted to note that and thank you for it.

I don't have any tough questions for you, either.

Mr. John Grace: Thank you, sir. I appreciate that very much.

The Chair: Thank you very much, Mr. Grace, and congratulations on your next adventure, whatever it is.

Mr. John Grace: Thank you.

The Chair: Thank you, Mr. Leadbeater.

Mr. Alan Leadbeater: Thank you.

The Chair: The committee is adjourned.