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Good morning. I'd like to call the meeting to order. This is our 43rd meeting, and pursuant to Standing Order 81(4), we're considering the main estimates for 2007-08: vote 40, Office of the Information Commissioner of Canada, under Justice, which was referred to our committee on February 27, 2007.
Committee members, you will notice that there is a camera in the room. CBC requested that they be able to televise or tape this entire meeting, or whatever portion of it they want. They did it through the appropriate channels, so that's the case, that's why they're there. It's a fixed camera. They'll focus on the people who are speaking, and only the people who are speaking, or the person who is speaking--hopefully. So that's why they're there.
They can only get the back of my head anyway, and that's the worst part of me, believe me. The back is worse than the front.
We have today, from the Office of the Information Commissioner, Mr. Robert Marleau, Information Commissioner; Mr. Alan Leadbeater, deputy information commissioner, and no stranger to the committee; J.G.D. Dupuis, director general, investigations and reviews; and Ruth McEwan, director general, corporate services, corporate management branch.
You don't have to introduce them, since I just did.
Welcome. I presume you have an opening statement, and then we'll go right into questions.
Mr. Marleau, please.
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Thank you, Mr. Chairman. It's a real pleasure for me to be here this morning to assist you today in considering the estimates of the Office of the Information Commissioner of Canada.
I will admit that I'm still near the bottom of a steep learning curve about the intricacies of the Access to Information Act and my office's role in its enforcement. In fact, this is my first appearance as Information Commissioner of Canada before your committee. However, I do have a good understanding of the role of the committee and the specific relationship that I and the other offices of Parliament have with their respective committees and with Parliament as a whole.
What I most want to say in these opening remarks is that I'm looking to this committee and to all MPs and senators to help me be the most effective Information Commissioner I can be.
It's been said that the right to know is the oxygen of democracy. Yes, there are many justifiable reasons for government secrecy, but too, there are great pressures on all governments to tolerate secrecy creep, to use secrecy as a strategic political tool and to hide behind it, sometimes to avoid embarrassment and accountability.
[Translation]
The mandate Parliament has given me, for the next seven years, is to be its agent for ensuring that governments keep the proper balance between openness and secrecy—a balance which is carefully articulated in the Access to Information Act, a balance which has stood the test of almost 24 years of time. In the coming months, if the government responds positively to the first report of the Standing Committee on Access to Information, Privacy and Ethics, members of Parliament will be called upon to scrutinize government proposals for access reform and to ensure that this law remains strong.
[English]
My priorities are set by the statute. I'm obligated to deliver to individuals through thorough and fair investigations into complaints made against government institutions. My mandate is to convince government institutions to correct any instances of excessive secrecy without the need for recourse to the courts. My pledge is to be a constructive voice of reason wherever and whenever there are debates over the proper balance between openness and secrecy in the federal government. In other words, I will not be an advocate for access requesters, nor will I be an adversary of government. I will be a servant of Parliament in the application of the ATIA and its purpose, which has been described by the Supreme Court of Canada as facilitating democracy by ensuring that citizens have the information required to participate meaningfully in the democratic process.
The core business of the Office of the Information Commissioner is investigation of complaints under section 30 of the ATIA. It is the goal of all our investigators to resolve the complaint, and they are very good at it. The volume of complaints and the length of time to complete them continue to be a concern. Last year's funding increase for investigators was a great step forward. We were unfortunately delayed because of the lack of appropriate space to house the new recruits. That's been resolved now, and we should be up and running by the summer of this year.
[Translation]
If government does not follow the Commissioner's recommendations, the next avenue of recourse is to the Federal Court of Canada. During confirmation hearings, I said to Parliament that I have, and will have, a bias against going to court. Despite my reluctance to go to court, when citizens' fundamental rights are at risk and mediation has failed, the Commissioner has no choice but to aggressively pursue the matter before the appropriate tribunal, including the Supreme Court of Canada.
[English]
Over the years, the ATIA has proven to be very robust; the jurisprudence has been largely in its favour. There will, no doubt, be hard cases that require court interpretation so as to protect the integrity of the statute and the rights it provides to Canadians, in which the court will benefit from the commissioner's views and input.
The Office of the Information Commissioner has no specific statutory audit or education mandate. Yet the pressure on my office to assist institutions is growing. We do systemic investigations and report cards. Believe it or not, many heads of agencies want to be in full compliance with the ATIA, and they look to us for advice and evaluation. The better their performance and knowledge, the fewer complaints we have to deal with. It might be better to invest in resources to advise, train, and educate than to incrementally increase the investigative budget.
The Office of the Information Commissioner and the Office of the Privacy Commissioner have, for four years now, worked with the University of Alberta on an online certificate program for ATIP officers and aspirants.
Over the past year, my office has been working with a distinguished group of access and privacy experts to develop national professional standards for access to information and privacy administrators. I have already made it a personal priority to get the Treasury Board, as the federal employer, to support the University of Alberta program and to recognize the new national standards as desirable, if not required, in its recruitment and advancement policies for ATIP officers. In the coming months, I hope to engage the standing committee on this matter and also to make it a component of any future debate on the reform of the ATIA.
As you will see from parts II and III of the estimates documentation, my office is seeking Parliament's approval in vote 40 for resources in the amount of $6,684,000, of which $5,278,000 is for employee salaries exclusive of employee benefits, and $1.4 million is for the anticipated operating expenditures.
[Translation]
Honourable members, I am ready to answer your questions. I will endeavour to provide you with some information about who we are, what we do, how we measure our performance, what is on the horizon for us and how we have utilized our resources. You may wish to have further explanations, which we are here to give. I am confident that we will develop a fruitful relationship.
[English]
Thank you very much.
:
Mr. Peterson somewhat pre-empted me. Mr. Marleau, I'm sure you recall that we met on another committee, the Finance Committee. That is why I am somewhat familiar with your area of expertise. It is also why I want to address the same issue raised by Mr. Peterson.
Indeed, we saw how the government did all it could to prevent the internal Department of Foreign Affairs and International Trade reports on torture in Afghanistan from being made public. I will ask you the same question in French; that way you can practice. First, the Conservative government denied the existence of the document, and then it was forced to do its homework. Finally, the Department of Foreign Affairs and International Trade made public a version which I would qualify as being highly censored.
I have several questions for you on this subject, mainly because access to information concerns you directly.
Here's my first question. You know, this old Conservative government—I'm sick of hearing it referred to as the new Conservative government—promised during the election campaign to implement Commissioner Gomery's recommendations by reviewing the Access to Information Act, which still hasn't happened. I must say that, unfortunately, as with every government of the last 30 years, this one also refuses to amend the current act. In fact, the government pretends to be moving forward, but obviously does not want to. Perhaps we'll see this very soon. I presented a motion to this committee almost six months ago calling on the new minister to table a draft bill to modernize the Access to Information Act. But for now, it seems that the government is refusing to do so. We'll see what happens later on. This Conservative government refuses to amend the Access to Information Act. I have the impression that this allows it to shirk its responsibilities too easily. Its attempt to suppress information these past few days is another example of that.
You gave two answers in response to Mr. Peterson's question. I don't remember who said what. One of you said that you received a complaint, and the other one said that you did not. That's what I understood. I would like you to clarify that for me.
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We again find ourselves in a tricky situation because the Access to Information Act has still not been modernized.
Do you not think that the case featured in the Globe and Mail today should spur the minister into getting his famous draft bill ready and bringing it to committee as quickly as possible, as we asked him to do?
Furthermore, I would like to take a moment to refresh everybody's memory, although not yours, as it is excellent. We asked him to table an updated and stronger Access to Information Act by December 16, 2006, not 2007. As you can see, the minister is very behind with his homework.
Would you not agree that the case featured in today's newspapers is a further sign of the pressing need for the minister to draft a new act.
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Exactly. That's just about what I was going to do. I just wanted to preface that it wasn't in answer avoidance. As I said earlier, and it was confirmed by the deputy commissioner, we are prohibited by the statute to comment on any details of an investigation, even after the investigation is over.
As for a typical investigation, a typical complaint comes to our office and we evaluate it. There's a conversation with the requester to clarify it. It is sometimes narrow, because sometimes the requester isn't quite sure what they're asking for. If we decide to go ahead at the request of the complainant, we'll then assign an investigator.
The investigator will look at the issues, the facts, the documents. He may indeed talk to people in the minister's office, or to anyone who was involved with the disclosure or non-disclosure of the document. The investigator then formulates an opinion, which then comes to the director of investigations, who will look at it. He may go back and say, look, our investigator has made this recommendation, but you don't seem to be in agreement. Could we try again as a mediation process? Mr. Dupuis will try to get the department to comply, from our perspective. We'll also take representations from the requester.
At the end of the day, there's a decision that has to be made; it's either a section 35 or section 37 report. Ultimately it can end up in the Federal Court. If I recommend disclosure, because I have no powers to order disclosure, it would be up to the court to decide if it should be disclosed or not.
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I spent the first 30 days, virtually the whole of February, studying the substantive issues surrounding the debate on the bill the committee recommended to the minister. I also presented my credentials to the lead ministers.
My priority is to develop, together with Treasury Board, training and performance standards for ATIP coordinators in the various departments. I firmly believe that having recognized professionals in all the departments will allow for a better understanding and application of the act which, in turn, will reduce the number of complaints.
That is why I spoke about the University of Alberta program, which offers an online certificate program in both official languages. It is the one that I will recommend to Treasury Board.
Our priorities are the same as those set out in the act.
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If time permits, I'll split my time with my colleague.
I'm following along the lines of Mr. Vincent and Mr. Marleau.
It's good to have you back here. I'm glad to hear that you're settling into the job. And I was really encouraged when I read your opening statement. You state that your priorities are set by statute, but that your mandate is to convince government institutions--these are noble terms, and I mean that, too; when I read this, I thought, this is good--to correct any instances of excessive secrecy without the need for recourse to the courts.
Then if I go down a little farther, you say, “I will not be an advocate for access requesters or an adversary of government”. I take that to mean that there must be a lot of frivolous cases. And I'm wondering--and I know some of my colleagues are going to ask you meatier questions themselves about the budget--whether a lot of the costs that we find in your office are related to frivolous cases. Can you weed those out and, as a result, speed up the process and even make it more efficient?
That's the only question I wanted to ask you.
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I will perhaps ask the deputy commissioner to comment after I make an initial comment, Mr. Chairman.
In the dialogue that takes place with the complainants, if it is frivolous, they can be talked out of it, and quite often, the dialogue with the complainants will make the scope of a potential investigation a lot narrower. So we do everything at the front end to try to make sure the complainant understands what he or she is asking for and what the scope of the statute is, because there is often not a lot of good understanding of what can be asked for and why it can be asked for.
But on the comment as to whether many of them are frivolous, I'd have to ask the deputy commissioner to respond. I don't get that sense early on in the game, but I'll let Mr. Leadbeater comment.
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There were no formal programs. This began in 2003. As a matter of fact, for a brief time, while I was interim Privacy Commissioner, I enjoined with then Commissioner Reid in supporting this program, and my successor there followed through on it.
It's a new program. It's offered online. It has five modules, I believe, that are needed for certification, and we just had some 40 students write their exams in our office a few weekends ago. I think there are more than 500 graduates of the program now across the country.
Tying into what Mr. Vincent was saying when he was asking me if there was something I wanted to change in the law, this is a dimension of it. I said in my remarks that I don't have an education mandate, but I think, like the Privacy Commissioner, that we should be considering an education and training mandate for access to make it better understood, and hopefully, to reduce complaints.
Thank you, Mr. Marleau. It's very fitting that you're here today, because I can tell you that some members of this access to information committee are reeling with shock over what we believe to be some of the most egregious and blatant violations of our freedom of information system that we've ever seen exposed publicly. I know you've now received three formal complaints about this same issue, one coming from the NDP, Dawn Black. I have her letter of complaint here.
This is not only the most blatant and serious violation we've seen, but the subject matter is so important, on a national level and international level, because we're being accused of violating the Geneva Convention by some of the information that has been blacked out. It's clear that the government has been busted, with black ink on its fingers, for blacking out sections of this report--36 sections of a 20-page report, all but two under subsection 15(1) of the Access to Information Act, which we supervise.
In your understanding of subsection 15(1), are you allowed to black out basic information such as...? Let me read one line that has been blacked out that we now know is in this report and ask you if you think this would qualify under subsection 15(1). It says here, “military, intelligence and police forces have been accused of involvement in arbitrary arrest, kidnapping extortion, torture and extrajudicial killing” of criminal suspects.
Why would that information fit under the category of subsection 15(1), about international affairs, etc.? Is that the kind of thing that you believe is properly excluded under subsection 15(1)?
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I'm sorry, you're out of time, Mr. Martin. You can come back for another round, if you like.
I'm going to take a round.
Mr. Marleau, I received this document: “Office of the Information Commissioner of Canada, April 26, 2007”. I hope you're familiar with it. I found it very interesting and useful. I just have a couple of quick comments and observations.
On page 1, just so that I understand it, there is a flow chart, and there you are, and there is a figure. Is that your salary?
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Well, I've never seen anything so detailed so far. I want to congratulate you for coming forward. I'm not even going to ask any further questions. That's enough for me for this year.
It was very helpful--to me, anyway--that you identified five specific things under “What Do We Do?” We've been talking about this, because in the blue books here, on page 3, you talk about striving to reduce the number of access to information requests and say that you're going to do this in three ways, including educating managers in the federal government.
On page 3 you also mention trying to develop an informed and well-trained federal workforce. I think that's a very good thing, because people who are properly educated as to the Access to Information Act will, we hope, make consistent and statutorily correct decisions when they're making their decisions as to what should or should not be blocked out.
This brings me to what's been questioned by Mr. , this program you're involved in. I'm going around this the long way. You indicated that you really have no education mandate, yet you're in effect undertaking an education mandate, whether you have it or not.
Then back to Monsieur . When you got to Mr. , you more or less suggested to us that if we're studying access to information, it might be a good idea for us to consider recommending that you have an education mandate, and obviously that would clearly require further funds, etc. Am I right in thinking that's where you'd like to see us go, and that's where you think the Office of the Information Commissioner should go, in terms of educating the ATIP officers around town?
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I would not want, Mr. Chairman, the responsibility for actually training and educating the ATIP coordinators. They are employees of the federal government, and Treasury Board has that mandate. We do some education through our reviews. We do two kinds of investigations, one following complaints, and then initiated reviews; and through that process, when we assess the department's performance, there's a lot of educating, if you like, going on, and we're going to continue doing that.
If the act were to be opened up, it would be one of my recommendations that we be given an education mandate on the advocacy side of education. We've done, I think, quite a bit in collaboration with the Privacy Commissioner and the University of Alberta with existing resources, with very minor investments on our part--mostly intellectual--on top of the duties my officers have.
If I can just make a parallel here with internal audit, the Government of Canada, Treasury Board, has set standards for recruitment of internal auditors. They set standards for recruitment of financial officers, and certification is required. I believe the same thing should apply to ATI coordinators, so that a deputy minister who gets a report from his coordinator's office that says “This has to be divulged” can look at that report with the same kind of confidence as if he were getting it from an SFO or from an internal auditor.
Thank you to the team here today from the Office of the Information Commissioner.
I just have one question, because all the questions I had noted have come out from other members, and they've been answered quite well.
I have to say, in regard to the progress you've made this last year, that the team in your office has done a tremendous job in dealing with a high volume of investigations and whittling down the backlog, getting out in front of this in terms of education. So I really hand it to you, and I wish you well in the year ahead as you continue to pursue these important objectives.
I'd also say that it gives me great confidence in your abilities--all your team--in the sense that you faced some pretty pointed questions here this morning and answered them with great professionalism. So I take some confidence in the fact that you're on top of this and you understand well and execute the objective role of this office of Parliament in keeping with those important tenets of both access to information and privacy, for the right reasons, in the execution of your work.
Now to my question. As the chairman also mentioned, the report you submitted here was, I thought, very well done. One of the items I came across, though, was in respect to your role. I was a bit surprised--I think it was a bit towards the end of the summer--when we received a special report to Parliament from the Office of the Information Commissioner. It was a rather comprehensive précis on the proposed amendments to the Federal Accountability Act, a very thorough document, set out at a time when the office was backlogged and going through some administrative pressures.
How does producing a document and a study like that fit into the mandate? Presumably this was an offer of advice and suggestion to Parliament. I don't know, I can't say what its origins were. Is that something that your office would just decide to do? Where does that fit into the mandate of the office, without being asked to jump into providing this kind of commentary?
Anyway, Mr. Commissioner, when I look at three months in the office, it's a tremendous leap; you're doing a good job. In fact, contrary to the Conservative government, when people are feeling too tired and they're still claiming to be the new government, well....
Anyway, you have said there is a backlog of about 1,000 in your office. Is it true?
Turning to page 3, there are two things I want to talk about. The first concerns the Privacy Act.
At this committee, Mr. Marleau, and maybe you can help us with this a little bit, I think we have made a decision that holds. In the fall we might embark on looking at the Privacy Act as a major study for this committee.
Of course, you had a previous hat on, but from the access to information piece, do you think it's a good idea for us? Is it time for it to be reviewed by this committee? Do you have any comments to that effect?
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First of all, we have our own manuals, and there are some precedents. In addition, as we said initially in reply to Mr. Peterson's question, we have to listen to the reasons the departmental officials give for making the decision. Of course we will listen to their reasons and why they believe disclosing the information could be prejudicial.
If we do not think that disclosure is clearly prejudicial, we will explain our position. Then we will discuss the matter. The report viewed by the Commissioner will outline the department's position, the complainant's position and our own opinion. At that point, the Commissioner will have to make a decision, after analyzing the various views and after an independent investigation of all the positions has been conducted.
Clearly, many things happen in the course of an inquiry. So the department will see our point of view, and we will see theirs. It is possible that in the end only 20% of the document may not be disclosed, whereas initially, the department may have asked that over 50% of the document not be disclosed. If we do not support this decision, we will have to convince the Commissioner of our view, and he will have to go to the minister and tell him that the document will have to be released.
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As Mr. Leadbeater said in his last answer, there'll be an evaluation this fall. In this spring of 2007, we're supposed to engage Treasury Board with our experience, and they will share with us their experience with the panel.
After that, it'll be up to the President of the Treasury Board. I assume he will make recommendations back to you, since the genesis was here, on a continuing process. I think all the officers of Parliament—who just had a meeting—are very supportive of the process, as it is very much an improvement. There's a lot more transparency on the part of Treasury Board, and it would be a shame to go back to position ante.
But the initiative is in the hands of the President of the Treasury Board, who started it up, and it will up to him to make recommendations for continuing.
Mr. Marleau, it's hard to overestimate the importance of your office. We've heard other witnesses and heard people say that freedom of information is a fundamental cornerstone of our western democracy. People have called it quasi-constitutional. Once again, your office is at the eye of the hurricane, at ground zero of a crisis of confidence in the government.
If the Prime Minister and his government knew the realities about the Afghan detainees and chose to hide the truth, then they have broken faith with the Canadian people on a monumental scale. The sponsorship scandal was only about money; this is about the fundamental values by which Canadians define themselves. This is the kind of thing that brings governments down. I'm not overstating that at all. It's not going to be enough that a minister falls on his sword, this could in fact bring down the government. Your office is at the heart of it, and you've told us you have a backlog of 1,057 cases.
I have two questions.
One, if directed to do so by this committee, can you fast-track this investigation and jump the queue, as it were?
Second, what form will your report ultimately take? As I mentioned, this is of critical national and international interest.
Those are my questions to start.
I appreciate your coming. I have a few more questions left, but they are budget questions.
I appreciate your not getting sucked into the political debate that's happening on the other side of the table.
I have a question with regard to page 9. It's just an understanding issue, again, for me. Table 3 concerns services received without charge.
First of all, I need to clarify that statement. I'm assuming that means that you're using the money but it's actually applied to somebody else's budget and not your own. Is that correct? Or do you put that in your budget? I don't understand what that means, services “without charge”.
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Mr. Wallace, I'm sorry, but you're over your five minutes. We have two questioners and seven minutes left, so I have to interrupt you.
I'm one of them. I'll try to keep it as short as possible. We have our guest, Monsieur Lussier, and I would like him to have an opportunity to speak.
I remind the committee that we've eaten up two hours. That's in the context of previous discussions on the value of having people here for the estimates.
Mr. Marleau, my questions are, again, referring to this document. On page 4, you indicate you've taken 16 cases to court and that the commissioner has been 100% successful. That is a fantastic statistic. I can understand your reluctance to want to go to court, because the more you go the more likely you'll lose that 100% mark.
What fascinates me is the next paragraph. You say the Crown has taken the commissioner to court 66 times on procedural and jurisdictional grounds. You have been successful 95% of the time. What kind of advice is the Crown being given if there's a 95% success rate? When you say the Crown in that sentence, who do you mean? Is that the justice department?