This is meeting 35 of the Standing Committee on Access to Information, Privacy and Ethics. Our order of the day, pursuant to Standing Order 32(5), is the annual report of the Information Commissioner of Canada for the fiscal year ended March 31, 2009, referred to the committee on Monday, April 6, 2009.
Our witnesses today, from the Office of the Information Commissioner of Canada, are Suzanne Legault, interim Information Commissioner; Lisa M. Campbell, interim assistant information commissioner, policy, communication and operations; and Andrea J. Neill, assistant commissioner, complaints resolution and compliance.
Welcome to all of you yet again. We appreciate your coming before us to tell us all of the wonderful developments since last spring, almost since close to June. I know there are some important developments in the commissioner's office. As you know, we had Mr. Marleau before us, more for a little farewell than anything else, but we certainly did appreciate the opportunity to speak with him again.
Madam Legault, I understand you have an opening statement for the committee. Then we'll move on to our questions and our usual practice.
Please proceed--
Mr. Del Mastro on a point of order.
:
Thank you, Mr. Chairman.
[Translation]
As you know, l was appointed interim Information Commissioner on June 30,2009, and I am delighted to appear before this Committee today in that capacity. As you said, with me are my esteemed colleagues, who provide day to day support for all the work done at the Office of the Commissioner.
[English]
Our discussion today is all the more timely given what various experts as well as ordinary citizens had to say during our recent Right To Know Week on the importance of freedom of information and the urgency to improve our access regime.
I would like to address three main issues. First, I will provide you with a brief overview of the OIC's annual report for 2008-09, which is indeed a reflection of the excellent leadership of former Commissioner Marleau. Second, I would like to comment on the government response to the eleventh report of this committee, entitled “The Access to Information Act: First Steps Towards Renewal”. Third, I will outline briefly my priorities as interim Information Commissioner.
[Translation]
You should have received a folder with supporting information to assist with our discussion this morning. You will find in it updated information on the OIC's case load and resources. As stated n our Annual Report, this Office owes to former Commissioner Marleau a major realignment of operations and resources designed to improve, amongst other things, our core investigative function.
[English]
In 2008-09 we moved ahead with the development of a new business model to streamline the investigative process while promoting greater institutional compliance with the act. We sought and obtained a significant increase in our base budget to support this new model. The new funding will be included in the office's budget in the next fiscal year.
As a result of our new way of doing business, we were able to close an unprecedented number of cases in 2008-09. I am also pleased to report that between April 1 and September 30, 2009, for the first time in history the office closed more complaints than it received. Thus, I am confident that we have reached a turning point in tackling the recurring carry-over of inventory. Also, as you can see in tab 5 in your folder, our inventory of pre-April 1, 2008, cases has diminished by about 50%. These are early indicators that our new business model is actually working.
Mr. Chairman, I stand behind the recommendations made to this committee by Commissioner Marleau in the spring of 2009; therefore, I share this committee's--and indeed, many stakeholders'--disappointment in the government response to those recommendations. In my view, reform of the act is necessary and urgent. Driven by the rapid proliferation and sophistication of information technologies, world economies are increasingly becoming interdependent. Our own economy has mutated from a manufacturing base to a knowledge-based economy. To fuel innovation, researchers and entrepreneurs require timely access to government data that they can mash up, repurpose, and make their own.
Ordinary citizens have moved from a conventional paper world to a world of texting, blogging, and twittering, and their requirements and expectations for government information has changed drastically. Our legislation needs to reflect this new environment.
[Translation]
My focus since taking on the interim position has been to implement the OIC's new business model to ensure an effective, thorough, fair and transparent investigative process, while preserving the requirements of confidentiality.
At Commissioner Marleau's request, our intake and early resolution unit was the subject of an early audit conducted last spring. This audit revealed several areas for improvement, including the time to obtain documents from institutions which spanned an average of 90 days.
[English]
I issued in September a management response to this audit report with a thorough action plan to address each shortcoming. This included the publication of a clear OIC directive on requesting records from institutions.
On the systemic front, I published in July a three-year plan that covers both report cards and systemic investigations. This plan takes an integrated approach to the assessment of delays in responding to access requests, while encouraging greater proactive compliance from institutions.
This year's report cards process expands the sample of institutions to be reviewed from 10 to 24. We will specifically look at delays in the average lifespan of requests in these institutions. Simultaneously, we will investigate chronic delays related to extensions and consultations. These delays have a strong detrimental effect across all federal institutions and severely prolong responses to requesters.
We plan to communicate our findings before the end of this fiscal year. My goal is to present a clear diagnosis, with recommendations to remedy specific institutional problems with compliance. This will assist in holding the relevant authorities accountable.
My approach as interim commissioner is simple. I will work diligently to fully implement the OIC's business model and maximize efficiencies in our investigative process while ensuring a thorough and fair process for all parties involved. In doing so, I will use all the tools at my disposal under the current legislation to ensure that requesters' rights are protected. Meanwhile, I will continue to work relentlessly with all stakeholders, including requesters, parliamentarians, and government officials, to modernize our access to information regime and ensure its continued relevance to Canadians.
Thank you. I am now ready to answer your questions.
:
So 250 and yet the Privy Council Office in the last three years has been in the top three or four in terms of the number of complaints generated to your office. We can understand Revenue Canada, people not happy with some of the information on their taxes, etc., generating lots of reports, but the Privy Council Office? I can't help but think something else is going on.
When I look at your numbers for the three years sequentially, the current government in their first incarnation, 2006-07 when they took over, 6.5% of the complaints that year were from the Privy Council Office. In 2007-08 the Privy Council Office was up to 10% of all complaints.
In 2008-09, if we take out CBC, Telefilm Canada, the crown corporations, so that we're using similar data, because the crown corporations just kicked in, we had a total of just over 1,700 complaints, 198 Privy Council Office, so 11.6%. We've seen a doubling over the span of this government in terms of complaints against the PCO.
You've heard from journalists; let me tell you, as an MP, I've given up on access to information. The mechanism most often used is cabinet confidence. Of the 50-odd Commonwealth countries, is it correct that only two countries, South Africa and Canada, do not allow the commissioner the ability to take a look if what is being cited as cabinet confidence in fact is a cabinet confidence?
I looked at these last three years and the data and the doubling of complaints against PCO. Parallel to that, you see that under the Conservative government, the average processing times have gone from 30 days to 60 days--in the time prior to this government--to 150 days, 250 days, and in some cases beyond. We're going from a couple of months to almost a year, in many cases.
There seems to be a new tactic being employed by PCO. A letter like this goes out after someone has been stalled out for, let's say, half a year: We're aware that a certain time has passed since your request was originally received; we sincerely apologize for the delay; and in an attempt to clear the heavy backlog, please complete the following--namely, do you still require that information, yes or no?
Isn't that somewhat Orwellian?
:
Thank you for being here today, Ms. Legault, Ms. Campbell and Ms. Neill.
You have obviously seen the response of the Minister, Mr. Nicholson, to the recommendations made by the committee. Mr. Marleau, the former Information Commissioner, has testified before the committee in his personal capacity so he could comment on that response. In his preamble, he even talked about something missing, that the public's democratic access to government information could be cut off. In his report, he said: "How much longer will Parliament stand by and tolerate this pervasive neglect and the attrition of a fundamental democratic right?"
Mr. Marleau was a senior public servant and had a rather full career in Parliament. He talked about his attachment to the institution of Parliament and said that it deserved at least a substantive response. The Minister's response, in his view, was very cavalier. In our view, it was more than cavalier; it was frustrating and inappropriate.
Given the work done by the committee and the recommendations made by the Commissioner after that response was received, what are your priorities for giving the public better access to information, despite the fact that none of our recommendations has really been adopted?
:
Mr. Chair, as I said in my opening address, I have an Act to apply, and it makes certain powers and mechanisms available to me. My intention is to apply the Act using the powers set out in it. That is the first step.
I am a problem-solver. In the government's response, I see two things. First, the Minister says there should be further consultations. I understand that some access to information actors are disappointed to see that comment. If the government insists on holding additional consultations, I would like to see the exercise developed in a structured way by the government, so there could be results at the end of the day.
Second, in the Minister's response, he says that the administrative process could be improved. In his letter, he simply refers to renewal of the access to information policy. In my view, a lot more has to be done. We already have extensive information about administrative reforms, and I can talk about that more, if you are interested.
:
Thank you, Chair, I appreciate that.
I'll pass on your compliments to Mr. Martin. He is always keen to be at this committee, because it's a subject that has been very dear to him in his political work over a long period of time.
Thank you for being here again, Ms. Legault, with your colleagues. It's nice to see you in the middle chair for a change. That's a good thing.
I want to go back to something you said in response to Ms. Simson. I found it quite disturbing, actually. You said that some requesters have given up on the process and have told you they no longer make requests. I see that as a victory for closed government. It's a very serious development that anyone who has attempted to use the system would give up in frustration.
I wonder if you could say a bit more about that. How widespread is that kind of response and that kind of frustration?
:
Mr. Chair, first of all, the three-year plan is very transparent and the idea is to foster self-compliance in institutions. In essence, if I tell people right off the bat that next year we'll be doing a report card on them, the idea is that they'll start putting their house in order this year. That's the first idea behind the three-year plan, to foster self-compliance.
This year, the first leg of the plan is to follow up on last year's report card--i.e., hold departments accountable for the recommendations in the action plan they stated they were going to follow. The second is that we're increasing the number of institutions. Last year, we were only able to do ten. This year, we're doing 24. They are 24 institutions where we have received at least five complaints in the preceding year.
We're expanding the scope because we wanted to have a better sample and a better understanding. These 24 institutions also encompass the 15 institutions where we have the most complaints in our office year to year, so they are essentially the departments where there are more issues.
We are targeting consultations and extensions and delays of any kind this year. At the same time we're doing the report cards, we're actually doing a specific systemic investigation on consultations and extensions related to consultations. The reason is that at this time, there are no statistics being collected by the Treasury Board Secretariat on the actual time taken for extensions. We've recommended that they take those statistics, but at this time they are not collected. What that means is that we have some evidence of the times of these consultations, but we don't have any complete data. We need to have a diagnostic and we need to hold the consulted institutions accountable.
Right now the way it works is that department A receives a request. It needs to consult with department B. Department B asks for a 300-day extension. Department A then says it needs 310 days to process department B's request, and if the consulted institution doesn't give department A the response in time, it's department A that gets dinged from our office while the consulted institution has no accountability. That's why we are targeting those institutions and those specific issues.
Next year, we're doing new institutions that became subject to the act in 2006-07, including the crown corporations and the agents of Parliament. The third year, we will have to assess, depending on what the two first years gather in terms of information. My goal is that in the third year we will no longer be dealing with delays in consultations. I'm hoping that the diagnostic will have made a difference.
In terms of budget, what we have done this year...because there was about $500,000 that did not get allocated to us this year because of the decision of Treasury Board in relation to systemic issues. We have reallocated part of our funding to continue to do systemic investigations.
We are actually working at a skeleton level. What we're going to do next year is negotiate--Lisa here, assistant commissioner Campbell, has basically started--with Treasury Board Secretariat in relation to this matter. But it will also be done in the context of the implementation of the business model.
As we move along in the implementation, we'll have a better sense of how the resources are being utilized, how effective the business model is, and whether the resource requirement is actually effective in complying with the business model.
For now, we're okay. We're moving ahead. We're continuing discussions with Treasury Board on the budget.
Mr. Wrzesnewskyj, on a point of order, raised relevance. I accepted it: that in fact it is in order, that in fact the matter being raised is not relevant to the matter currently on the table before the committee, that in fact it is a matter that is coming after we excuse our witnesses.
The chair ruled that the point of order is correct, and that Mr. Del Mastro should, on the basis of relevance, move on to matters related to the commissioner. Mr. Del Mastro has challenged my decision. It is not debatable, and we must go to a vote. A recorded vote has been asked for.
Shall the decision of the chair be sustained?
(Ruling of the chair sustained: yeas 5; nays 5)
Ms. Legault and your colleagues, thank you very much for appearing before us this morning. I certainly enjoyed reading your report and listening to your comments. The further information you've supplied to us has been extremely useful.
When I was going through your report I noticed the chart on page 17 entitled “Summary of caseload, 2006-2007 to 2008-2009”. When I look at those numbers, in just about every case there's an increase. But what I don't see is the number of complaints by individual.
I say that because at our last meeting, when Mr. Marleau was here, he gave this committee evidence that 29% of the complaints received last year came from only two individuals, and the top 10 complainants account for almost half of all the complaints received by your office. That seems to be rather excessive, on the point of a couple of individuals, with the caseload and workload you're experiencing.
I do note that in the information you gave us today in this extra handout there are some further figures and facts.
Can you comment further, without naming the individuals in question, on what percentage of the complaints came from your top complainant?
:
It's about 50% of our business.
It's important for me to put this on the record, Mr. Chairman, because this is probably the only area where I disagree with former Commissioner Marleau.
The top complainants actually represent other individuals or other interests. I think those figures are relevant to us in terms of the client service perspective, because we are sometimes able to deal with matters in bulk, or with matters with portfolio against certain institutions. But my view, as interim commissioner, is that these complainants are providing a service. Some of them represent other individuals, and some of them represent the media.
Therefore, they represent a much broader public interest set of individuals requesting information than just the number of complainants.
Thank you for that clarification that the methodology in your tabulation has changed as of this fiscal year only.
The data we have here are similar in nature, so if we look at complaints against PCO in 2006-07—I did use percentages—they were 6.5%, and once again, if we exclude crown corporations, they've gone up to 11.6%. So it's a doubling. And there's a clear trend here that coincides with what I believe are new approaches to dealing with these matters.
Now, I had finished off my last round by noting that we've gone from 30 days to 60 days to 150, 250, 300 days for requests, and when people call to find out what's going on, most often the response is that it's in PCO consultation. So they're actually the gatekeepers on this information.
We also have this new innovation that they send out notes to the requesters saying that it's been such a long time—in some cases, I guess, a year—and asking if it's still of relevance, encouraging people to drop these particular cases.
Does this disturb you, the trend in terms of the number of times PCO blocks access to information citing cabinet confidences, the trend of journalists or members of Parliament giving up on the system, this new innovation and being told that it's in PCO consultation?
What do you make of it? Do you find this disturbing?
:
Mr. Chairman, I find the whole consultation process under the Access to Information Act probably the most disturbing aspect of the regime currently.
There are several departments for which the Treasury Board Secretariat actually states there should be mandatory consultations. It's not just the Privy Council Office; there is anything having to do with law enforcement, so we're dealing with the RCMP. There's also anything having to do with international relations, so we have DFAIT and DND.
As I said before, there is no timeline at all in the legislation for consultations. So there is very little measure of how long these consultations are. They're not measured in the statistics that are collected by the Treasury Board Secretariat. We have only a small sample of those that come to us as complaints.
We do know from experience that the consultations are very long in certain respects. Cabinet confidences consultations are very long. Anything having to do with consultations on international relations takes a long time. So because there's no measure, there's also no accountability, and as I stated before, the consulted department has no responsibility or accountability under the current legislation or under the current administrative regime.
So because of that, there is probably excess in relation to consultations right now, and because these are core departments on very important issues for Canadians, that has a widespread systemic and negative effect on access to information.
You provided a pie chart showing types of complaints against PCO for 2008-09. The vast majority, 41%, were cited as being cabinet confidences; that was the excuse provided.
If we were to look at previous years, has that proportion increased or decreased?
The reason I am asking is we've seen a doubling of complaints against the PCO since the Conservative government has come into power. We see that in this one year, cabinet confidences as the excuse given by PCO are the root cause of the vast majority of the complaints. Has the pie chart changed in its slicing? Did cabinet confidences always account for 40%? As we've seen this doubling, have we also seen a proportionate increase in the citation of cabinet confidences?
Good morning, Ms. Legault. I'd like to thank you for your report and your staff for all their hard work in preparing it.
I notice on page 31 of your report that you refer to the government's ending of the CAIRS system, and that you will be describing your investigations on this matter in your next report. This is something that I've been interested in for a while.
There was an interesting article published in the Toronto Star by a reporter named Ann Rees, who is actually an academic herself, entitled “Red File Alert: Public Access at Risk”. It was dated November 1, 2003. It talked about the CAIRS system and the amber lighting that happened when certain requests came from the media or members of Parliament.
It refers to and records the comments of Professor Alasdair Roberts, whom I'm sure you're familiar with. He's a law professor and a well-regarded expert in the area of access to information. He said that no other country in the world maintains a database like CAIRS. He went on to note that, “CAIRS is the product of a political system in which centralized control is an obsession.”
That was under the previous government.
I appreciate Mr. Wrzesnewskyj's line of questions regarding requests to PCO.
Former Information Commissioner John Reid was also quoted in that same article:
“What we are seeing,” he says, “is a greater use of the time-delay factors that are built into the act: 'We can't do it in 30 days, we need 90 days.'
“I have now instigated a study to find out whether there is anything going on at all.”
Delays are the order of the day for Red File requests to the Privy Council Office, which handles requests for information involving the Prime Minister and his staff.
I'm a little confused about the difference between a red file and an amber light. Anyway, he went on to say that
Records of all PCO requests completed last year show one out of every four media requests--14 of 58 requests--were tagged for further review. The average time to process these requests was eight months.
That would have been in 2002, I assume.
That's pretty interesting. It sounds like there has been a great delay coming from the Prime Minister's Office for a lot of years.
Have you studied Professor Roberts' analysis in your review of the CAIRS system? Are you revealing what he's written on that system and what took place before and during 2003?
:
I must say that we have an active complaint in relation to CAIRS. We are in the process of investigating these complaints, but they're not completed. It's part of our review. In our office, there have been two other instances of complaints in relation to the CAIRS system. Our office reviewed all of this information. It's true that at the onset the CAIRS system was being used to develop a centralized view of complex cases. It raised different types of issues, and it was criticized for this.
In recent years, the CAIRS system has actually morphed into a new use. It became useful for requesters, who took the information collected in CAIRS, which they gathered through access to information requests, and used it as a central database. David McKie collected this information and created the database. Now Michael Geist at the University of Ottawa has done the same thing. In fact, the CAIRS system has evolved over the years from a government tool to a requester's tool.
When we were consulted about the discontinuance of CAIRS, our office took the public position that CAIRS should be continued until a better or newer process was available, even though we were aware of some issues with the technology underlying CAIRS. Indeed, CAIRS has evolved into a tool for requesters, as opposed to a tool for government.
Thank you to the witnesses today.
I appreciate the opportunity to speak with the Information Commissioner. I want to continue on with the line of questioning that I had the opportunity to work through with your predecessor, Mr. Marleau, for whom I have tremendous respect and with whom I had worked on another subcommittee.
I'm going to move to page 42 of your report. In the context of the length of the report overall, a thoughtful reflection on advocating for legislative reform, I spent some time looking at more than a dozen substantive recommendations and some other commentary. I want, for the record, for the benefit of the committee, and certainly for Canadians, to reflect on that 25 years and get an appreciation for some of the things that transpired.
Last week we heard Mr. Marleau testify at this committee that the Conservative Federal Accountability Act was the most significant reform to the Access to Information Act, the act itself, since it was first passed in 1983. Do you share that view?
:
Right to Know Week originated in Bulgaria in 1999. The day of September 28 is actually Right to Know Day internationally.
In Canada, we celebrate it as a weekly event. We collaborate with our provincial and territorial colleagues. It was significant this year because we were actually able to have a national event for the first time. We shared a common trademark for Right to Know Week. We shared seminars via webcast. We had four events. Mr. Chairman participated in one of the panels. We had a legal panel, an international panel, a session on the new age of government information disclosure with Senator Fox, and an evening with journalists and academics in relation to access to information. CPAC collaborated with us, so at virtually no cost it was televised across Canada.
For me, the major success of Right to Know Week, which is to bring access to information to Canadians, is that my father was able to watch it in his living room. To me, that's what Right to Know Week is all about; it's to actually spread the word about the importance of access to information.
We also collaborated with the Canada School of Public Service, which webcast the Senator Fox seminar so that it would be available to all public servants.
So for us, this year, it was not only significant because we were able to have several events in collaboration with universities as well—the University of Ottawa and Carleton University—but also that it was done in a manner that was accessible to all Canadians across Canada, in both official languages, and that we had tremendous collaboration from our provincial and territorial colleagues.
:
That's quite a track record.
It's interesting; there are two ways to block access to information. One is to put up a wall. Another method is to create a frustrating maze, at the end of which people just give up. We've seen numbers increase, double. I'm referencing the Privy Council Office and these new mechanisms put in place whereby departments say, “Well, it's in PCO consultations”. Things are dragging out as long as almost a year now, up from the 30 to 60 days that existed previously.
I can't help but think of the TV commercial that we see these days of a little boy with a red truck that's been given to him by a banker. After 30 seconds, time's up and the truck gets taken away, the boy gets a cut-out cardboard truck, and the banker says, “Sorry, read the fine print”. You see the disappointment in the child's face.
There is incredible disappointment; I almost feel that I'm being treated in a similar manner as an elected representative when I try to make these access to information requests.
You've clearly stated that disappointment not only exists among MPs and journalists—people are giving up—but there's a tremendous amount of disappointment in your office. Do you intend to once again follow in Mr. Marleau's footsteps and say, “We need some quick fixes”? Perhaps we've reached a point where we say we need a general overhaul; let's take a look at the open system in New Zealand, where everything immediately gets posted on the Internet.
The minister has basically thrown our report out--work that all of us agreed to, pretty much unanimously, 12 recommendations for quick fixes. It's clear there's no intention on behalf of the minister to address any of this. Ten sessions were spent to work quite meticulously on those recommendations.
Is it time to say, okay, enough of this, let's just overhaul the whole system? We have the opposite of access to information. We have a culture of secrecy.
Ms. Legault, you mentioned, in answer to a question from Ms. Davidson earlier, that of the top complainants to your office, you thought some of them were providing a service to others. You also said that some of them were resellers of information.
I note from the statistics that were provided previously by Mr. Marleau that 25% of all the complaints to the Office of the Information Commissioner come from two individuals or organizations, described as, in one case, business--that's the largest number--and 12% from media.
Would it be fair to say that if 25% of the complaints to your office are from those types of organizations, 25% of the access to information requests are similarly from those sorts of organizations?
Would that be a reasonable assumption?
When we were considering Mr. Marleau's suggestions on how to improve the system earlier this year, we examined this one individual witness who's a journalist, a freelance journalist. He freely admitted that he made several hundred access to information requests a year, and that a fair number of those resulted in complaints to your office.
As I understand it, his business is looking for stories. He makes hundreds of requests for all kinds of information from all kinds of departments each year. When he finds something that he thinks will make a good story, he then writes the story and sells it to a number of publications.
That's his business. Fair enough, it's a business. And I assume a good public service is being provided there as well. But if he's earning income, profiting from that, shouldn't there be some cost to him in obtaining that information, which he's then turning around and reselling for profit?
Similarly, there are businesses--lobby firms, law firms, data collection firms like Dun & Bradstreet--that are reselling their information to other businesses that are also doing things for profit. Doesn't it make sense that some of the burden of the provision of this information...?
As you know, all of this money comes from hard-working Canadians. We tax them, we get this information, and then we give free services to people like Dun & Bradstreet, who will charge probably a significant markup on the cost of their service to resell it to their customers.
Mr. Marleau told us that the average cost to fulfill an access to information request is approaching $1,500.
Doesn't it make sense to try to segregate those for-profit business organizations and charge them something of a reasonable fee for that service?
:
We're resuming our meeting.
Thank you for your indulgence, colleagues. It seems that whenever there is a bio break, there seems to be also a meeting break, and many people are catching up on their BlackBerry messages, etc.
I have three more people on my list, plus anybody else who cares to be added.
The whole issue of access to information, the act and its operation, and related matters such as the ones Mr. Dechert brought up, are extremely important. We've invested a lot of time, and I hope we don't rush to any conclusion that we tried some stuff and nothing worked, so we'll come back to this another time.
I think that ultimately we do have to come to a point at which we say what's next. I hope we'll have an opportunity as a committee to discuss that--think about it first, but then discuss it.
Mr. Wrzesnewskyj, please.
Back on June 11, 2007, in a public accounts committee meeting, there was testimony from the officer in charge of the ATIP section for the RCMP, on a file, by the name of Michel Joyal, who appeared before the committee and made some very serious allegations. He stated that on an access request, he received a call from a deputy commissioner, Deputy Commissioner Gauvin, who then requested that he bring his file and then met with him in the commissioner's office—the commissioner of the day was Mr. Zaccardelli—with several other officials. Commissioner Zaccardelli was not there, but Deputy Commissioner Gauvin was there and several of his officials. They had prepared a separate docket for release--not the ATIP docket documents but their own--and attempted to do a switcheroo, which Mr. Joyal refused to do.
This was confirmed in testimony before the committee by Superintendent Christian Picard.
This is our federal police force. These were very serious allegations that touched on a deputy commissioner directly and, indirectly, the office of the commissioner.
Was there ever an investigation initiated? I understand that there has to be a complaint on an ATIP. If there wasn't, this is of tremendous concern.
We also heard testimony that documents would at times go missing, or would be improperly labelled so it would be difficult or impossible sometimes to find them or access them.
If there wasn't an investigation of these very serious allegations, is there a mechanism...? It's not an actual ATIP complaint. It's a complaint regarding the conduct. With the legislation passed in 1999, it would appear that this sort of action would be criminal in nature under the amendment to the legislation.
What has happened with this, and how would one proceed?
:
Mr. Chair, I'm not familiar with this case in particular, but the fact is that if there were to be a complaint to my office in relation to this matter, it would be confidential. I would not be in a position to comment.
In surmising from the comments of the honourable member, it seems to me that there are ways within institutions to actually disclose wrongdoing. This would seem to me, under the circumstance, to be more appropriate, and it would be to a different commissioner.
If there is a matter of specific complaint in relation to the destruction of records or the concealment of records, or the counselling and concealment or destruction of records under section 67, then we would conduct an investigation. However, I would say to the honourable member that this provision in our legislation probably needs to be amended, following the Federal Accountability Act, because it still makes reference to the Attorney General and should probably make reference to the Director of Public Prosecutions.
There has also never been such an investigation conducted under our legislation. What I can share with members of this committee is that I am actually looking into this specific provision and how we would conduct an investigation in partnership with, perhaps, the Attorney General, as the law currently states, or the Director of Public Prosecutions. I have engaged in these types of discussions this summer because I am concerned about how it would actually be applied in practice, as it has never been done.
:
Thank you. That's quite helpful.
I've looked up some information in a report called, Fallen Behind: Canada's Access to Information Act in the World Context, by Stanley Tromp in 2008. He did in fact find that of all the Commonwealth countries, the 50-odd countries, there are only two that do not provide for independent review of the citing of cabinet confidence: South Africa and Canada.
So just as his report is called, we've certainly fallen way behind. But even more interesting, what we find among Commonwealth and OSCE countries is that the average request response time is two weeks, and in many countries it's just 10 days.
How is it that virtually all western democracies are able to do this in 10 days to two weeks, yet in Canada, with this new mechanism of using the PCO, so that it's in PCO consultations, it's now taking as long as a year?
Ms. Legault, I just want to go back to the minister's response, because it was extremely frustrating. To me it seemed like a total waste of time, having spent time in this committee and working together on quick fixes and examining witnesses at great monetary cost to the taxpayers of this country, including flying witnesses in, and then to get a response, which Mr. Marleau, in his testimony, was kind enough to point out to us, amounted to 300 words, and to be dismissed out of hand.
I guess I do want to ask you this question. The minister states that the Access to Information Act is a strong piece of legislation. Would you agree with that?
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The way I think about the Access to Information Act--I remember that Monsieur Marleau used this expression in his opening remarks in the spring—is the same way I speak about our legislation internationally: I consider our legislation to be the grandmother of legislation.
So yes, it does have some fundamental tenets that are very well enshrined. And we do have, let's face it, the benefit of having implemented the legislation within our institutions for 26 years. In that respect, we are ahead of many other countries.
Legislation is not sufficient: that being said, the act has fallen behind. Stanley Tromp's piece is actually very accurate, because we have fallen behind, not only internationally but also compared with our provincial and territorial counterparts, whose legislation has either been amended recently or has come into force after our own federal legislation.
Would it be fair to say that the act, because it's so old--to use your grandmother analogy--although it's been described as perhaps significant...? “Significant” isn't always a positive thing. You can have some significant impacts that are negative.
Mr. Marleau also testified that what he sees happening, because we haven't changed the infrastructure, meaning the actual legislation, and updated it, is that we are now seeing the Federal Accountability Act causing the Access to Information Act itself to buckle.
Would that basically be a fair assessment?
In his response to the committee's recommendations, Mr. Nicholson said he did not want to create expanded powers of a quasi-judicial nature for the Commissioner. He referred to recommendation 5, under which the Access to Information Act would give the Commissioner an education mandate. He doesn't want to give us quasi-judicial powers. I have some trouble understanding the connection, but you may be able to see something I don't see.
Recommendation 6 says: "That the Access to Information Act provide an advisory mandate to the Information Commissioner on proposed legislative initiatives." That also gives you expanded quasi-judicial powers. He also referred to recommendation 9, which says: "That the Access to Information Act require the approval of the Information Commissioner for all extensions beyond sixty days," and again said he does not want to create
Is his response really referring to quasi-judicial powers?
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No further members have indicated that they wanted to speak.
I just had a little discussion with our analyst and researcher about where we are right now and your interventions today on your annual report. Certainly there is a significant overlap with the business item that this committee has been engaged in for the last two meetings, which is the response of the to the committee report on quick fixes to the Access to Information Act.
In the middle of that consideration Mr. Martin made a motion, which still has not been disposed of, but it is in fact not a new item of business. That happens to be a motion within an existing item of business, being the response of the to the act.
So we haven't quite resolved that and how the committee is going to deal with it. Certainly the motion is one aspect. It basically speaks for itself. It's just that the committee is not happy with the response, but that doesn't do anything to help us with the act.
This item will be on our business for Thursday. I've asked the researchers to prepare a list of items that are still outstanding concerns.
I am very concerned, Acting Commissioner, that the jousting that is going on not only among members but maybe even between the commission and the prior minister, etc., is not a healthy approach to moving forward on constructive measures related to the Access to Information Act.
I am very concerned that this could simply bang the gavel and the subject matter's closed. It's basically that the minister at this time is not open to any changes and the committee has put itself in a position where we can just say we don't agree with you. But this doesn't help the outstanding issues that we have.
I don't think it's in the best interest of the public and I don't think it's in the best interest of the committee that we terminate this discussion. I said earlier that we need to vet some of these things, whether it be the cost recovery issues that Mr. Dechert has been raising since the very beginning or some of the issues that you have raised today with regard to double-counting problems.
It's simply the fact that there are proxies out there who are requesting information on behalf of larger numbers of people. You probably will never understand or never know just how broad the interest and the concern is. If you eliminated all the proxy or all those commercial players, how many individuals would then come forward in the numbers?
I think the numbers have to be in terms of number of complaints, number of requests, etc. It has to be taken that every year we report is probably going to have the same level of fuzz in it, so that on a macro basis it's probably relatively comparative. I'm not overly concerned about that, but I am concerned there are some issues that continue to be of concern to members.
The point I was going to try to make is that if we don't make changes in a minority government, it's very unlikely we will be making them in a majority government. This is the time, in my view. That's a comment. I don't want your response because it's unfair.
I appeared on the Right to Know Week panel, which you referred to in your opening remarks. First of all, I enjoyed it very much. I thought the panel that I was on just gave a wealth of information. I know you have captured an awful lot of that. I hope the members will have an opportunity to be apprised in one way or another of some of the wisdom that came out of those number of sessions. I was on only one panel of a large number of panels.
I would remind you that at the very end, the moderator of my panel said, “After you finish your remarks, I want you to give me your top two recommendations for consideration”. I'm not sure if you recall, but I was the last speaker in a panel of about seven or eight people, and everything I wanted to say had already been said. So that made it really difficult.
I basically set my speech aside and concentrated on two areas. One was what came up today about the Mexico situation and proactive disclosure. It is something we have not really given serious thought to. It is something I think should be given serious thought, because it does mean that governments would not wait for a request but would simply post on the web all those matters that are accessible under the act. The only things that would not be posted would be matters of national security or cabinet confidences.
It would change the whole situation that we are talking about. It would solve so many of the problems.
I'm asking you whether or not proactive disclosure is an approach you believe this committee may want to consider, and whether we should maybe even visit or bring witnesses from the Mexican authorities to talk to us about the process they went through, where they are, and whether or not it is applicable to us.
Is that something you think this committee may want to consider?
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Mr. Chairman, I think proactive disclosure is the wave of the future. I can report to this committee that my colleagues at the provincial and territorial level decided, in September of this year, to make proactive disclosure one of our priorities in terms of what we want to recommend to governments.
With regard to authorities or international examples, I would suggest that the Mexican model may not be the best one even though they do have a web-based system, because there are new pieces of legislation.
For example, I mentioned the Quebec legislation, which is new. They have a new publication scheme under which there are two key areas in addition to what exists now at the federal level, which is disclosure of requests and the responses. That would be a leap forward, I think, at the federal level. As well, I think having public institutions gather statistics that are of public interest would go a long way in a knowledge-based society.
So the system in Quebec is a good example. There have also been recent pieces of legislation in the U.K., in Scotland, in two jurisdictions where they have just implemented publication schemes that I am aware of.
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Conceptually, though, this is something that will be on our agenda eventually.
My second recommendation for the panel had to do with the need for us to amend section 2 of the charter, regarding the rights. I have actually put in private member's Motion No. 445, which calls on the government to take all appropriate steps to amend the Charter of Rights to explicitly include the right of access to information that is under the custody or control of the government.
I still feel very strongly about that. I know it is very unlikely that it's going to happen very easily or very quickly, but there is a court case before the Supreme Court on this very question now regarding the whole debate about implicit right versus explicit right in the Constitution of Canada.
Can you tell us the status of that and what the substantive arguments are with regard to the issue before the Supreme Court right now?
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I'm in the middle of a statement to the witness, okay?
The importance here is that this is not the first time it's come before the Supreme Court. There have been challenges to the right of access in the past, and in this one here, if the decision does not come down correctly, then we have a step backwards in terms of the implicit right to know and the right to access of information. It is a democratic right that we believe in now that's being challenged in the courts. So a lot of the things we have been talking about now may be moot because governments can just say they're not going to show the leadership, they're not going to respond on a timely basis, and nobody can do anything about it. You know, they can say, “Take us to court.”
It is a very dangerous situation. I want to raise that with you because I hope we'll be able to have a further dialogue. You may come back to us, maybe after the decision comes out and with some of the fallout, because I think it's important. The committee is committed to, one way or another, addressing the current situation with regard to the Access to Information Act.
Madam Legault, Ms. Campbell, and Ms. Neill, I want to thank you very much for this. I'm going to invite you to continue our good relationship on this matter and to keep us informed on developments that relate to your mandate, because the committee would like to continue its dialogue on this. I know that it's been a very long meeting. It's been one of the longest we've had on the subject, but it deserves it.
We have some related or other business before us that I would like to go to before we have to adjourn at noon.
I thank you, again, on behalf of all the members. You are excused.
First, it's not a point of order. Second, the committee schedule was for 9 until noon. Members make their arrangements and obligations. The reason for the delay had nothing to do with the committee. As you know, it was a technical problem. That's unfortunate, but I cannot say to the members that I'm going to make it up on their time.
But the chair would entertain a motion either to adjourn right now or to extend this meeting a further 15 minutes, if that was the amount. I'm open.
It wasn't a point of order. You got the floor by saying it was a point of order, but I understand.
Mr. Del Mastro.
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This is a procedural, it's like....
This in fact is not debatable and a vote has to be put.
Is that correct, Mr. Clerk?
This is to change the order of the day and the timing of the meeting and it's self-explanatory. It's like moving for an adjournment. Effectively, this is to move an extension, so that's in order.
Shall we extend the meeting by 15 minutes to make up the time we lost?
All those in favour of extending the meeting?
(Motion negatived)
The Chair: We will not extend the meeting.
Given where we are, we're adjourned.