ETHI Committee Meeting

     Order.

    This is meeting six of the Standing Committee on Access to Information, Privacy and Ethics. Our orders of the day, pursuant to Standing Order 108(3)(h)(vi), are to study allegations of interference in access to information requests. Our witness today, from the Office of the Prime Minister, is Mr. Guy Giorno, the chief of staff.

    I would like to mention to colleagues that the committee approved certain other agenda items to be dealt with, should there be time at any meeting. I've included them at the end here, but Mr. Giorno will be the first item of business until the committee is prepared to release him and move on.

    This morning the commissioner for access to information tabled her report cards on 24 institutions. I think it was a tough but fair report. I'm sure it will come to play in some of the discussions we have with Mr. Giorno.

    Sir, I understand you have some brief opening remarks for the committee.

    I see that we have a question first from Madam Davidson.

    Thank you very much, Mr. Chair. I'm not going to take up much time here. I just want a clarification, and you partially answered it in your opening remarks. I'm wondering how long Mr. Giorno will be here.

    The second thing is on the third item of business on our agenda, a discussion on the appointment process. Just to be clear, that is the process of doing it, and not the appointment itself. Is that correct?

    That's correct.

    On the timeframe, Mr. Giorno has come here at our request. We're basically in the hands of the committee. I'm sure the committee will have questions for him. When the committee is finished its work he'll be excused. If there's time left we will be moving on to other agenda items.

    Excellent. Thank you, Mr. Chair.

    Mr. Giorno, please.

    Merci beaucoup, monsieur le président.

    I want to begin by congratulating you on your re-election last month, and by congratulating Mrs. Davidson and Mr. Siksay on their respective elections as vice-chairs. I'd also like to thank the committee for inviting me here today and for accommodating my request to appear at the earliest possible opportunity.

    As you and I just discussed, Chairman--I'll share this with the committee members--we met 30 years ago during the 1980 federal election campaign at an all-candidates debate in the riding of Etobicoke Centre, sponsored by my high school, Michael Power. The chair was present as an alumnus candidate. He was running in the neighbouring riding of Mississauga South. I was working my 14-year-old tail off for a candidate named Joe Cruden.

    On election night, despite the majority victory for my then party, I was sorely disappointed that both Joe and the chair had lost very close races. But I guess history shows that my support was pretty irrelevant or insignificant, because by the time the chairman had started to rack up his six consecutive victories I had already moved on to the other party. I don't think either of us would have imagined 30 years ago that we'd be meeting again, each of us in our respective roles.

    Nonetheless, I am happy to be here today. I'm very pleased and look forward to responding to questions of committee members, particularly those related to my responsibility.

    Committee members will appreciate that as an unelected government employee hired under section 128 of the Public Service Employment Act, it's not my place to speak for the entire government. As I often repeat--and some of the committee members will have heard me say this--though I bear the title of the Prime Minister's chief of staff, I'm still merely part of the staff.

    The supremacy of Parliament is ensured by the principle of ministerial responsibility, and that is the cornerstone of responsible government. The principle requires that those who exercise the constitutional authority of the crown must be part of Parliament and responsible to Parliament. It is ministers, not officials, who exercise constitutional authority; then it's ministers, not officials, who are responsible to Parliament.

    When a government employee appears before a committee to answer questions, as I do today, those answers do not alter the fact that it is ministers, not officials, who are constitutionally responsible for the exercise of authority, and who are responsible to Parliament. Expressed differently, the presence of an official like me and the answers I give can assist in the answerability of ministers to Parliament, but do not sever the responsibility of ministers to Parliament.

    On January 23, 2006, Canadians voted for change. They sent a message to all politicians that it was time to turn over a new leaf and change the way business is done in the federal government forever.

    The first legislative reform introduced by this government was the Federal Accountability Act, the most sweeping and most comprehensive anti-corruption law in Canadian history. It signalled the government's determination to clean up Ottawa after the sponsorship program. It changed the way federal political parties are financed, with no more big money, no more secret trust funds, and no more corporate and union donations. It cleaned up Ottawa's contracting, advertising, polling, and procurement practices, to ensure that taxpayers' money is well spent. It gave real iron-clad protection to whistle-blowers who come forward with allegations of wrongdoing. It ended the revolving door among ministers' offices, the bureaucracy, and hired-gun lobby firms, and it strengthened the access to information law by nearly doubling the number of entities that are subject to access to information.

    As Prime Minister Harper said when the Federal Accountability Act was introduced, and I quote, “We are creating a new culture of accountability that will change the way business is done in Ottawa forever”. The objective was to replace the old culture of entitlement with good clean government, because that's what Canadians voted for on January 23, 2006.

    A centrepiece of our anti-corruption law was strengthening access to information. The Honourable John Baird explained thusly on April 25, 2006: “Canadians deserve better access to government information. The Government of Canada belongs to the people and the government should not unnecessarily obstruct access to information”. Access to information is the public's right. Subject to the Access to Information Act, every Canadian citizen and every permanent resident “has a right to and shall, on request, be given access to any record under the control of a government institution”.

    All ministers have delegated their responsibilities under the Access to Information Act to specifically named public servants, and it is those specifically named public servants, pursuant to delegations of authority, who are responsible for all decisions under the act. No political staff member has received a delegation of authority under the act, and therefore no political staff member has authority to make access to information decisions.

    The new Treasury Board policy on access to information, which replaced the weaker policy of the previous government, provides as follows, and refers to a delegation order, in section 6.1.2: “Once an order is signed, the powers, duties or functions that have been delegated may only be exercised or performed by the head of the institution or by the named officer(s) or employee(s)”.

    So to repeat, no political staff member has received a delegation of authority under the act, and therefore no political staff member has authority to make access to information decisions. Political staff members are subject to the instructions issued under the authority of the Prime Minister in a book called Accountable Government: A Guide for Ministers and Secretaries of State. That book states,

    in section 6.1, on page 37:

    Adherence to accountable government is a condition of continued employment for members of the political staff. In each department, it is public servants, not political staff members, who compile the records in response to an access request, who decide on and give notice of time extensions, who decide which mandatory and discretionary exemptions apply to any records, and who decide whether or not to invoke or apply a discretionary exemption.

    I cannot speak for the practice of all departments, but in the Prime Minister's department—that is, the Privy Council Office—after an access decision is made and prior to release, the minister's office—that is, the PMO—is informed of the fact that an access decision has been made and there will be release. The legitimate purposes of this advance notice, which in our case I understand usually occurs approximately four days prior to release, include: to brief our minister on the content, to prepare to respond to questions in question period or from the news media, and to explain the content to anyone who might ask.

     The purposes of this advance notice do not include, and must not include: to alter the decision, to vet the content, or to delay, deny, or withhold access. However, this advance notice is entirely consistent with the constitutional responsibility of each minister for the operation of his or her department. An advance notice does not alter the fact that decisions about release, time extensions, and invoking exemptions are made by non-partisan public servants pursuant to delegations of authority.

    I'll simply close by pointing out that staff training has covered these points. It covered these points prior to my arrival. After my arrival in 2008, Accountable Government, which covers these points, has been reissued. More recently, I've taken specific steps to reinforce these rules, including the rule that the Access to Information Act must be upheld and the rule that it's improper for a political staff member to instruct public servants in the exercise of their authority. Those rules were confirmed and re-communicated as recently as this year. They've been reissued and re-communicated, so there can be no possibility of confusion.

    Chairman, I thank you and members of the committee for your indulgence. I now look forward to answering any questions that members may have.

    Just for clarification, in the document referred to, the Prime Minister's code of conduct for ministers, ministers of state, public office holders, who is the person responsible for determining whether or not there is a breach?

    I'm referring to the document Accountable Government, Chairman. It's issued by the Privy Council Office under the authority of the Prime Minister. Questions about interpretation and application are usually answered by the Privy Council Office. In the case of ministers, though, the Prime Minister is ultimately responsible for ensuring that a minister has or has not complied with it. In the case of members of the political staff, it would be each individual minister who is responsible for ensuring that his or her employees comply with it, or for dealing with any cases of non-compliance.

    Thank you for the clarification.

    We're going to go right to questions. Mr. Valeriote, please.

    Mr. Giorno, thank you very much for coming before the committee today.

    Coincidentally, you're probably aware that there was just a press conference by the interim information commissioner, Suzanne Legault. Are you aware of that press conference?

    I'm aware that it took place. I'm not aware of the content of her report.

    Okay. Well, I'm somewhat surprised that on the tail of that report and on the tail of that conference, where it was nothing short of a scathing indictment of this government's compliance with the Access to Information Act, you would come in here and say that the record of your party should be met with approval of some sort.

    She reviewed 24 different ministries, and a majority of them failed. If you look at the record, indeed there are some that she marked with an “F”. Environment Canada and Foreign Affairs and International Trade were off the chart and given a red alert. She said the delays are tantamount to censorship.

    You said in your opening remarks that, really, there's no interference by ministers, none whatsoever, that the decision, really, is by the access to information officer. Yet on page 52 of her report, under Natural Resources of Canada, she says:

    That indictment is endemic in a number of other institutions, a number of the other ministries she reported on. We need to know, by what authority do these ministers interfere? You said yourself, it's the ministers and not the staff who are responsible. By what authority do they interfere? Is it convention or legislation? I can't find the exceptions in the Access to Information Act that would, by my estimation, allow this kind of interference.

    Thank you, Chairman and members of the committee.

    The position of the government is clear. The government expects that the act will be upheld and that there will be full compliance. The act requires that decisions about access be communicated in a timely fashion, and if not, there is a process under the act for time extensions. Then there's a process for right of appeal, as you know, to the information commissioner. So it's the government's expectation that there will be full compliance with the act.

    Now, the member's question relates to delegations, and in his preamble he suggested that all those delegations might be to ATIP officers. That in fact is not the case. Each minister has issued a different delegation. The names of the employees to whom functions have been delegated are in the delegation orders. Every department puts those delegation orders on its website.

    The member will notice that different departments have different delegations. Some delegations are ATIP coordinators, some are delegated to directors general, and in some departments the minister has delegated some functions under the act to some levels of employees and some to others. So I can't comment on the range of delegations across the system--

     Mr. Giorno, let me ask this, then. When a request comes in, are certain requests other than the normal requests flagged in some way and sent to PCO or the PMO?

    I can only speak for the Prime Minister's department. In the Prime Minister's department—Privy Council Office—there is no amber-lighting or red-flagging—whatever you want to call it—system. There was one, and it was well documented, under the previous government. and that has been eliminated.

    Okay. If they're looking at a request and are making a decision as to what will be released and what won't be released, can you talk to us about the criteria or parameters, whether written or unwritten, within which a decision is made to partially or completely prohibit the release of information?

    Chairman, I'm a bit confused by the question. The criteria are in the act. Those who exercise the delegated authority are to comply with the act and to uphold the act. Political staff members do not have authority to be making those decisions, to be interpreting and applying the act.

    Then let's speak to Mr. Sparrow's conduct specifically, which gave rise to the motion by Mr. Easter to have you appear before the committee. By what authority did he act to prevent the release of that information?

    First of all, it's important, Chairman, to get the facts clear. The case to which the member refers was not a case involving an access to information request. It involved the ordinary intercourse between members of the news media and officials in the government. It was as a response to a reporter's request.

     Mr. Giorno, can you tell me what the unit known as the issues management wing is?

    Do you mean in the Prime Minister's Office, or in ministers' offices generally?

    I mean in the Prime Minister's Office.

    There are a number of functions in the Prime Minister's Office, as there have been in all prime ministers' offices. The issues management staff is responsible for preparing the Prime Minister for question period, for assisting the preparation of other ministers for question period. And because the House of Commons does not meet every day, but Canadians have a right to expect that questions are answered, and reporters have questions on a seven-day, 24-hour basis, even when the House is not sitting and there's no question period, they're helping to ensure the Prime Minister has answers and that ministers answer those questions.

    Mr. Giorno, there is a report in The Hill Times, a story on March 1 by Jeff Davis, saying that the PMO issues management wing routinely gives verbal directions to slow down, delay, or stop ATIP altogether, or to transfer ATIP to the centre. Is this true?

    I will say the following. The rules are clear. My expectations are crystal clear. Political staff members are not to give direction to public servants, and the Access to Information Act is to be upheld.

    Chairman, the member refers to an article in a newspaper quoting anonymous sources. I'm here today. I'm here appearing on the record. I'm here appearing before a televised audience in addition to committee members. I'm speaking in my own name. I stand by what I say. I will not indulge in anonymous gossip from sources who lack the certainty or the conviction to put their own names behind what they say. If the committee chooses to indulge that, the committee has the tools and the ability to chase it down, but I will not indulge anonymous gossip.

    Madame Freeman.

    Good morning, Mr. Giorno.

    Thank you for your testimony here this morning.

    You began your presentation by highlighting the fact that, in your view, when the Conservative party came to power in 2006, it marked a fundamentally positive change in accountability. I would just like to say that not everyone perhaps reads things in the same way as you. For many Canadians, the Conservative party coming to power was not the dawn of a new era as the party claimed.

    Over the weekend, I took a look at Mr. Harper's speeches. At the time of his election, he promised an honest, open and accountable government. We saw his star candidate, Mr. Allan Cutler, who first blew the whistle on the sponsorship program after the Liberal debacle that we came to know as the sponsorship scandal. So there was Mr. Harper presenting himself the head of a government of accountability.

    I would just like to point out that we feel that, without a shadow of a doubt, the situation is quite ridiculous after four years of Conservative rule. There was an item on the program Enquête in which Hélène Buzzetti, the president of the Canadian Parliamentary Press Gallery, expressed a good deal of concern about access to information in your government. Le Devoir reported that it takes 300 days to get information about Afghan detainees. The Globe and Mail said that it took 32 months to get information. A news agency needed 82 extra days to get information about the allegations at the heart of the investigation of Christian Paradis.

    Everyone can see that there is one delay after another and that there is a huge amount of censorship. When a government operates in that way, when delay follows delay and when documents are censored, it is an affront to the very roots of democracy. That is what journalists are claiming.

    As a member of Parliament under your Conservative government for four years, I see things too. It was no coincidence that Parliament was prorogued just as we were in the middle of a storm about Afghan detainees and about the environment episode in Copenhagen. Shutting down Parliament to avoid answering questions as important as those is also thumbing one's nose at democracy.

    In this committee, we worked for three months to try to make recommendations about the Access to Information Act. We heard from a number of witnesses, like Mr. Marleau, we looked at all Mr. Reid's recommendations for improving the act, and we got barely a page in reply from Mr. Nicholson telling us to go back and do our homework. My feeling is that this too is showing contempt for the parliamentary system.

    I mentioned Le Devoir, The Globe and Mail, and The Canadian Press. but I forgot to mention the Ottawa Sun that wrote that Harper was ruling like a king over a defunct democracy.

    Currently, there are allegations of systematic political interference in ministers' offices in an attempt to block or obstruct the flow of information. Section 67.1 of the Access to Information Act reads as follows:

    Order.

     I would just like to point out that you're already five minutes into it. I really must allow the witness an opportunity, please.

     I have a point of order, Mr. Chair, on that.

    There was a comment made by Madam Freeman about the Prime Minister, and I would like to refer to chapter 13 of Marleau and Montpetit, “Rules of Order and Decorum”, on page 614:

    So I'd ask that the comments she read, which were an indirect quote from a newspaper, be seen as not in order, as defaming someone's character at this committee.

    Okay. I don't believe the member intended to defame. She was quoting an article. However, I caution all members to treat the situation--and the witness, of course--with respect and dignity.

     Let's move on, please.

    Thank you, Mr. Bezan.

    Three urgent investigations are being conducted by the Information Commissioner. I want to know if you feel that the Prime Minister should ask for an RCMP investigation as he did for Ms. Guergis. The allegations against Mr. Paradis are serious.

    Mr. Giorno, we're already six minutes into this, but I want you to take the time that you need to respond. I'll give you the time, if it's acceptable to the members, but we need to keep our timeframe under control, please.

    Thank you, Chair. I'll try to be brief.

    The member touched on a number of points.

    The first is that the member referred to section 67.1 of the Access to Information Act. That is in fact the law. As recently as February, I communicated that to ministers' chiefs of staff by sending out a memorandum that confirmed the provisions of accountable government to which I have referred, confirmed the need to uphold the act, and reminded them and their staff members that section 67.1 of the act makes it an offence to obstruct the right of access. That was a memorandum I sent on February 9.

    I followed that up with subsequent training for the staff members of ministers who are responsible for issues management. I appeared before one of their regular meetings and addressed the Access to Information Act and my expectations, and touched on some of the points the member has raised.

    I think the record shows that the government has, in fact, introduced many positive reforms to access to information. The member refers to responsibility. It was this government that in the Federal Accountability Act added subsection 4(2.1) of the act, which places on heads of institutions--that's ministers--the responsibility to ensure that there is timely, complete, and accurate disclosure of records without regard to the identity of a requester. That was a reform of this government, and the government's access to information policy was strengthened to that effect.

    It was in fact this government that brought in, through the Federal Accountability Act, a requirement in the statute to have the responsible minister compile statistics so that members and the media and the information commissioner can ask the sorts of questions that are being asked.

    I'll close by stating that the timeframe for compliance is an issue, and it's not something of no concern. It's the government's policy that departments are to respond in the timeframes contained in the act or extend time in accordance with the act, subject to the right of a requester to go to the information commissioner and ultimately to the Federal Court.

    It's obviously something of concern; otherwise, the government wouldn't have proceeded with the Federal Accountability Act, nor would it have strengthened the access to information policy in the way it did.

    Thank you, Mr. Giorno.

    Go ahead, Mr. Siksay, please.

     Thank you, Mr. Chair.

     Thank you for being here today, Mr. Giorno. I'm sure you're a very busy guy, and I'm sure you had many other things you could be doing this morning. So thank you for coming.

    I want to echo what other members have said, given our concerns about the initial request around this issue, but also given the information commissioner's report card today. Many of us are very concerned that there is a developing culture of secrecy, a fairly highly developed culture of secrecy, that there has been mounting inattention to transparency on the part of this government. And many of us believe that access to information and the ability of Canadians and others to see the information of government is the oxygen of our democracy, and we're concerned that depriving our democracy of that oxygen is a very serious issue.

    The information commissioner's report today is very serious, indeed. The fact that the Privy Council Office gets a “D” in that report is, I hope, very concerning to you and your colleagues. The fact that one department, Foreign Affairs and International Trade, was so bad that the commissioner couldn't even find a way to rate it in the scale of her exercise and she had to issue a red alert is also extremely concerning and something that I hope is demanding the immediate attention of government.

    That being said, I want to ask some specific questions. You described the notification process that happens when an access request is ready to be released. You talked about four days' notice that's given. There's been some concern that this notification process has in fact turned into a consultation process, where staffers have tried to convince officials to release less information. They have made suggestions that it might damage relations with another level of government, a provincial government or a foreign government, as a way of diverting it to the Privy Council Office and further delaying it.

     Could you comment on the fact that the notification process seems to have morphed into something other than mere notification so that a department can prepare an appropriate response to released information?

    Mr. Chairman, I'll begin by saying that I accept and agree with Mr. Siksay's comment that access of information is the oxygen of democracy. In fact, this is a principle the government adopts and it has been made clear by the Supreme Court of Canada in decisions such as the Dagg decision. The Supreme Court of Canada has actually said and recognized that the access to information law has quasi-constitutional status precisely because it's access to information, which makes our democracy function and allows citizens to hold people in public office accountable.

    Now, I have a specific question of the member related to advance notice. I said I could only speak to our office, and the four days to which I referred was an “average”, approximately, in our office--four days. But in general, it's important to remember that there is nothing wrong with that.

     Former deputy information commissioner Mr. Alan Leadbeater had the opportunity to appear before this very committee on October 2, 2006. I'm referring to the committee's evidence, number eight, the 39th Parliament, first session, at page 5. The former deputy commissioner was asked about this very point, and he said as follows:

    That is the former deputy commissioner's interpretation of the act, and it's one that I think is correct.

    Mr. Giorno, do you think timeframes are being met with regard to release of access to information requests?

    Chairman, any question about timeframes needs to take into account the fact that while the statute sets out timeframes, the statute also provides a proper mechanism for extending timeframes. And then it provides a mechanism for a requester who has a problem with that to turn first to the information commissioner, and second to the federal courts.

     Subject to that comment, obviously, it is not just the policy of the government, the position of the government. It is my personal view that subject to that, of course, timeframes are supposed to be met. And that's why the government, as I've already said, introduced an amendment in the Federal Accountability Act, to the Access to Information Act, to add a new subsection that wasn't there before, to make heads of departments--i.e., ministers--responsible for accurate, complete, and timely responses to requests.

     Mr. Giorno, has a minister ever lost their job because of an inadequate response to access to information? Would the Minister of Foreign Affairs be in jeopardy today because of the information commissioner's report?

    Point of order.

     Mr. Chair, Mr. Siksay is asking a question that deals with things outside of the witness's realm. As he stated earlier, he was hired under the Public Service Employment Act. In O'Brien and Bosc, chapter 20, page 1068, it says:

    So if we're going to start asking these types of questions, it's definitely outside the realm of Mr. Giorno, our witness, to comment on those, and I think he should be excused from answering that. Committees ordinarily accept the reasons that public servants give for declining to answer a specific question or series of questions that involve the giving of a legal opinion that may be perceived as a conflict of interest with the witness's responsibility to the minister. I think that definitely applies here. He is hired under the Public Service Employment Act and that line of questioning is out of order.

    Thank you for the citation.

    In committee, the members can ask questions they feel are appropriate. Should it be inappropriate in the view of the witness, the witness has the opportunity to make that point.

    If Mr. Giorno is prepared to address the question or at least the part of the question that he feels is relevant, then he can do so. This is really a matter for the witness to determine.

    Mr. Siksay, you have about a minute and a half.

    Mr. Giorno, I don't know if you want to respond.

    I think that in part, Chairman, I've answered the question. The expectations are clear, the policies are clear, and they are continually communicated. We have a stronger, more robust access to information regime today in the year 2010 than we did as recently as 2005.

    It will be interesting to see where the performance on access to information fits into the Prime Minister's assessment of his own ministry.

    Mr. Giorno, does the PMO yell at ministers' offices when more information is released than the PMO thinks is appropriate?

    My expectation, and the Prime Minister's expectation, is that his rules be upheld, and the rules in accountable government are quite clear: access to information is the public's right. Access decisions, Chairman, are delegated to specifically named public servants.

    No political staff member has received a delegation of authority under the act and therefore no political staff member has authority to make access to information decisions. It would therefore follow that one should not suffer any consequences for observing the standards in accountable government, which are that you don't instruct public servants and you respect the Access to Information Act.

    Mr. Poilievre, please.

    Thank you, Mr. Giorno, for appearing.

    I think you and this government are deserving of praise for the improvements in access to information that the country has seen over the last four years. Those improvements are measured by tangible, objective standards like the fact that the number of agencies and institutions covered by ATIP has almost doubled since we took office. Roughly 59 new agencies and institutions have been added, and in a whole series of departments that were already covered there have been major improvements in the grading. I look at, for example, the gradings that were offered by previous information commissioners of departments during the previous Liberal government, and I notice that my colleague across the way has made particular reference to your department, the Privy Council Office, and that according to today's report, PCO received a D.

    Now, you've acknowledged the need for us to continue to strive more and work hard to improve, but you're building on what we inherited from the previous Liberal government, which was: in 2004 PCO was graded F; in 2005, F; and in 2006, F. From that moment the government took office, and there has been steady improvement.

    You have a background in working on access to information. Can you tell us the experience you have in dealing with ATIP laws prior to your current role as chief of staff?

     Chairman, I thank the member for that question.

     I won't comment on the statistics to which he has referred; he's asking about my background in access to information and privacy law.

    I've been practising law for almost 20 years. I was called to the bar in 1991, about 81 days after the Ontario Legislature brought into force the first municipal access to information law in the country. I began practising in that area—freedom of information, or access to information, as it's called in many of the provinces—appearing in one of the first eight cases decided under the Ontario statute, appearing in court on two of the first five judiciary applications under that statute.

    Shortly before coming here I was engaged on behalf of a requester as legal counsel in a four-year struggle to get the City of Toronto to cough up documents related to a major transaction involving the sale of street lights. I won six consecutive decisions on that point, fighting obstruction and stonewalling. In fact this was such a long case that three of those six successful decisions under the act were argued when I was in private practice; the decisions weren't rendered until after I came here.

    I have experience as a requester, as a third party, as well. Before coming here I would lecture routinely on this. Mr. Siksay is from British Columbia, where there is a robust law. Ontario, where I come from, and Prince Edward Island are the only two provinces where hospitals and health care institutions aren't subject to freedom of information laws or access to information. I was an advocate and argued that hospitals should voluntarily adopt access to information policies to make themselves more transparent and accountable.

    I was a member of the Freedom of Information and Privacy Association, which is a B.C.-based society that is intended to promote and advance the cause of access to government information. In fact I was a member of that association until the day I took this job. With the conflict of interest rules, I was required to relinquish it.

    I have spent my entire legal career dealing with this area of upholding these principles. While as a public servant who was hired under section 128 of the Public Service Employment Act I am subject to certain restraints, I think my experience and my position on these matters are a matter of record.

    Thank you, Mr. Giorno.

    We've seen other departments where there has been a tremendous improvement under this government. In 2004, for example, under the previous Liberal government, the Department of Justice scored an F; in today's report we find that the Department of Justice has scored an A. In 2004, under the Liberal government, Citizenship and Immigration scored a D; in today's report they scored an A. In 2004, Public Works and Government Services scored a D; in today's report they have a B.

    There has been some improvement since that time, but it does take time to turn a ship around. Would you agree with that?

    Yes, I'd agree with that.

    I don't think it's appropriate for me to engage in partisan commentary, but I think it's a matter of fact and record that there have been demonstrable improvements in performance, policy, and legislation.

    In the last year of the Liberal government, the RCMP scored an F. That was in 2005. Today the Royal Canadian Mounted Police scored a C. Again, we remark upon some improvements. I think you would agree that the trajectory is on the right track.

    You personally held the view that government should take this issue seriously. Government made changes not only to access but also to lobbying roles. These changes were a key plank of the government campaign commitment. Do you still believe in those changes, and can you tell us why they are so important?

     Absolutely.

     The member referred to lobbying. Obviously that was the primary area of my practice before coming here, the law regulating lobbyists, where I was a consistent, clear, and unequivocal champion of stronger, more stringent, tougher rules on the lobbying industry.

    I think all of the changes in the Federal Accountability Act were necessary, because at the end of the day the Government of Canada, government resources, government information, and government networks, when we're dealing with lobbying and lobbying restrictions, don't belong to politicians or bureaucrats; they belong to the people of Canada. That's why those changes were so important.

    Thank you very much.

    Ms. Foote, please, for five minutes.

    Thank you, Mr. Chair.

    I too thank you, Mr. Giorno, for appearing before the committee.

    Having listened to your opening remarks and your responses to some of the questions that were put to you this morning, I'm having a real problem finding the reality of what you're saying in terms of the real situation and especially in light of the report that was released this morning by the interim information commissioner. There are two different pictures here.

    I'm assuming that, given the work that was done by the interim information commissioner, you too must recognize that with what you're saying, despite the rosy picture being painted by Mr. Poilievre, a majority of the institutions she looked at are still not in fact complying with the act but are having some really serious issues. They're either given a failing grade or there's a red alert on one of those.

    I want to go back to the situation of Mr. Sparrow, because you make a distinction between requests from the news media and ATIP requests. I wonder what that distinction is, because surely no matter who is requesting the information, the same principle of transparency and accountability must apply. So why would a routine request for information be flagged by the Prime Minister's Office, or the minister's office, as was the case for Mr. Sparrow, even if it was just a routine request from the news media?

    Chairman, I'll speak first generally about that. As I understand the question, it was about the difference between media inquiries and a request under the Access to Information Act—

    And why they would be treated differently.

    The first part of the answer is that in principle, there should be no difference. Information should be available. This is clear from policies in the act. Information that should be disclosable under the act should be disclosable in the absence of a formal request under the act. That's an established principle. But when we enter the area of media requests, which are no different from stakeholder requests or other requests not under the act, it's important to distinguish between requests that involve statistics, facts, data, or information, and requests that involve policy positions and that sort of thing.

    To use an example that the staff has heard me use, related to the Peace Tower, if a reporter asks how many bricks are in the Peace Tower, that's a statement of fact, and somebody—I assume it would be the Department of Public Works—should provide that answer. But if the question is what is the government's position on rehabilitation of the Peace Tower, what is the government's position, if any, on the source of materials for renovations, what is the government's position on the budget for those sorts of things, then obviously that's a different kettle of fish.

    So if a request is for straight facts, obviously facts should be provided. But if a request involves policy positioning, all of that, essentially a political question about the policy or political positioning of the government, obviously the ministers and their offices would be involved in that part of the answer.

    What would have been the situation, then, with the request that Mr. Sparrow dealt with from the media where they were asking for specifics, for detailed financial information that was readily available, but that Mr. Sparrow, or whoever, decided wasn't going to be made available?

    Well, I—

    That was detailed, factual information that was readily available.

    Chairman, I'm pausing. The reason I have trouble understanding the question is that I believe the detailed information, which was the budget of the advertising campaign, was in fact provided to the news media outlet in question. So I'm actually confused.

    If the question is was it provided, I think the answer is yes, it was.

    It was delayed by three weeks. The question is, why was it delayed? Why, if the information was readily available, was it not given to the news reporter at the time the information was requested? The bureaucracy who have been involved said the information was readily available. So why would it not have been released?

    Obviously that's something committee members can ask the minister, who has been invited to appear before the committee, or members of her staff. It would probably be unwise for me to comment on specific details of situations I'm not aware of, but I can speak generally about these matters.

    That's okay if you don't feel comfortable answering that.

    I really want to get to when you were talking about ministers answering questions. You said, if I recall correctly, that in fact the act had been amended by the Prime Minister to ensure that ministers would in fact comply with ATIP requests. I'm questioning why, for instance, in Natural Resources Canada all but the most routine requests are held up in the minister's office. Where does that show there's any kind of compliance?

    Mr. Giorno.

    Thank you, Chairman.

    I think I've answered that question. As I've explained, I referred for example to the authority of Mr. Leadbeater. As well, I point out that the previous version of Accountable Government was something called Guidance for Ministers, and the version of that document issued in November 2003 by the incoming government of Prime Minister Chrétien said as follows--and this is directly responsive to the member's point. This is page 51, section V.6.

    In French, the pages are 51 and 52.

    “You are advised to operate in accordance with the intent as well as the letter of the Act when dealing with requests from the public for information”--and here's the key point--“and you have the right to expect your department to keep you fully informed of requests for access which are being granted.”

    That was the policy of Prime Minister Chrétien and also of the two previous prime ministers.

    So there's nothing wrong with informing staff of the minister or the minister that the decision has been made and stuff is going out the door. The key is that the process should not involve delay, should not involve alteration of the decision.

    Thank you.

    Ms. Davidson, please.

    Thank you, Mr. Chair.

    Thanks very much, Mr. Giorno, for being here this morning and clarifying these issues with us.

    I know that in your opening statement you said that government takes the access to information requests very seriously. Certainly that's the way it should be, and I was certainly glad to hear you say that. I firmly believe also that access to information is the public's right and that they need to know that.

    We've heard some different statistics here today. We've heard some reference to the report that was tabled this morning, and we've heard some rebuttal on what some of the improvements are when you go back and look at some of the other reports that have been tabled. I think that's significant. I think that we need to not lose track of that. I think we need to be clear that there have been some improvements made, and I think that we're all certainly free to admit that there need to be more improvements made.

    So I think we're heading in the right direction. I think the policy is right. I think we need to continue on with the act the way we intend to.

    You also said in your opening remarks that these requests are certainly taken very seriously and they're not to be interfered with by political staff. Since you've become chief of staff--I think it was in 2008 or thereabouts--what have you done to instill the importance of maintaining an open and transparent government among the political staff members?

    Yes, it's almost two years that I've been here. I arrived July 1, 2008. Shortly after that, in fact after the 2008 election, Accountable Government was reissued. It addresses these principles, addresses the Access to Information Act, and it addresses the requirement that political staff members not instruct public servants in the exercise of their authority.

    More recently I have communicated fairly extensively with members of the political staff, both in my own office, the Prime Minister's Office, and in ministers' offices. I wrote on February 9 to chiefs of staff reminding them of their obligations, and their staff's obligations, and the restrictions placed on them under the Access to Information Act. I wrote to the Prime Minister's Office staff members on February 12 of this year. I wrote again to chiefs of staff on February 12 on this issue.

     I said I made a presentation--I'm not sure if I said it was on February 12, but on February 12 I appeared before the regular meeting of issues management staff in ministers' offices and reminded them of their obligations under the act. I reminded them of the provisions of Accountable Government, I reminded them of the provisions of section 67.1 of the Access to Information Act. Then in March I wrote again to the ministers' chiefs of staff and asked them again to confirm these principles, these expectations, with members of their staff and asked them to give me a written record of the communications within their offices.

     Specifically, how are the political staff told to treat the information requests?

    The simple response is that political staff members are not told to do anything related to an access to information request. They're told to let decisions be made by the members of the public service who have received delegations of authority under the act, and that's it. No political staff member has received a delegation of authority under the Access to Information Act; therefore no political staff member has authority to make an access to information decision.

    Has it always been the case that political staff members have never received delegation?

    It has always been the case that political staff members have not received formal delegations. I don't want to stray into partisan territory here, because I'm not sure that's helpful to the discussion. But certainly there is ample evidence, and I'd cite both the findings of Justice Gomery and some of the reports issued by the former information commissioner, John Reid, indicating that there was some significant political interference in the access to information process.

    I make that comment not on a partisan basis; it's just a matter of the history of the evolution of access to information law. But leaving that aside, I think the entire Parliament of Canada has gone beyond that with the reforms that were contained in the Federal Accountability Act--the changes to the access to information policy that are designed to turn the page on some of the behaviour that I think all members of the committee, of all parties, would agree was unfortunate.

    Thank you.

    Madame Thi Lac.

    Good morning, sir. Thank you for testifying here today.

    Earlier, you quoted the act to us, even though we already know it. Can you tell us with certainty that no procedure was breached at any time and that there has been no political interference, no less than transparent behaviour? How can you make that claim? Have you investigated allegations of interference by ministers, yes or no?

    I can state what I know. I know that the rules are clear, the expectations are clear, and they are constantly reinforced and re-communicated.

    My question was: have you already investigated allegations of interference by ministers, yes or no?

     I don't understand the premise of the question, or I guess I disagree with the premise of the question. Where there are specific circumstances that require addressing or being looked into, they are looked into. But if the member is asking me whether I've taken steps as the result of anonymous commentary in The Hill Times, the answer is no. I don't think the member would expect me to do that.

    Mr. Chair, that was not what I asked.

    Have there been actual investigations, yes or no? It is a simple, factual question.

    Can you answer that question, Mr. Giorno?

    Thank you, Chairman.

    The member may think it's a simple question, but the premise is flawed. There's nothing to investigate. Where there are specifics, obviously they would be looked into. If the member has specifics she wants to bring to my attention, I'd be happy to take them back. But the only thing we've heard today is reference to anonymous commentary in The Hill Times.

     If the member is asking whether I have launched an investigation on the basis on anonymous commentary in The Hill Times, my answer is no--nor do I expect any member would expect me to.

    So you are denying that there is a problem and you are doing nothing to correct it.

    When there are allegations and information that keep coming back, it would be your duty to check the information. We are giving you the chance to clean the house that you say you have wanted to clean for four years. You could pick up this ball and take this opportunity to conduct an investigation and shed light on the matter.

    But you said clearly that you have no intention to follow up on journalists' allegations. But journalists base their articles on something...That is what I wanted to know.

     Chairman, I thank the member now, because I understand the premise of her question. She was asking me whether I intended to follow up on anonymous news tips, and my answer is no.

    We are going in circles.

    You say that ministers are responsible for making sure that the rules in the accountability guide are followed. How do ministers ensure that they are followed?

    Sorry, Chairman. I'm not sure I understood the question.

    Each minister is responsible for the duties that have been entrusted to him or her. Subsection 2.1 of section 4 of the Access to Information Act makes the head of a department--that is, the minister--responsible for ensuring that access requests are dealt with accurately, completely, and in a timely fashion. Each minister has signed a delegation of his or her authority to named public servants. I think I said earlier, in my opening statement, that obviously the cornerstone of ministerial responsibility is the minister's responsibility to Parliament. So ultimately ministers are responsible to Parliament to answer for or speak to how the duties that have been entrusted to them under the statute are being discharged.

    Does each minister have discretion in following up or is there a single rule of conduct for all ministers?

    No, Chairman, I think the member misunderstands or misperceives what the act provides. There are very clear principles in the statute: there are mandatory exemptions; there are discretionary exemptions. Where discretionary exemptions might apply, those decisions are made by public servants to whom ministers have delegated specific authorities under the statute, and once delegated, it's those public servants who are making the decisions to apply discretionary exemption. However, I think the member and I would both embrace the principle of the supremacy of Parliament and would realize that despite the delegation of authority, ultimately it is the minister who is responsible to Parliament to answer for how delegated authority is being discharged. In that respect, the Access to Information Act is no different from any of the statutes enacted by the Parliament of Canada.

    Ms. Block, please.

    Thank you very much, Mr. Chair.

     I join my colleagues in welcoming you here this morning, Mr. Giorno. It's good to have you here.

    I appreciate the history you gave us in terms of what our government has done with the Federal Accountability Act in pursuing the creation of a unique cultural accountability by strengthening access to information. I also appreciate the fact that my colleague reflected on the improvements we have made in the last number of years. I think it's always important to take a look at a report within the context of other reports that have gone before it, so I appreciate knowing that we have had tremendous success in the areas of access to information.

    Another thing I appreciated hearing from you was that you've experienced these issues on both sides, both from the perspective of a requester as well as someone who is now responsible for ensuring that our government is complying with legislation.

    Could you tell me a little more about your previous law practice, and what if any relevant experience you had with respect to lobbying laws?

     Chairman, I think the member has asked an interesting question. She touched on my experience under access to information or freedom of information. Before coming here as legal counsel dealing with these access to information matters, I or my client and I have been at the receiving end of political interference, and I had no intention of coming here and allowing it to continue. So my record there is very clear.

    As for lobbying law, the law governing lobbyists, I said I have always been a champion of tough, rigorous, stringent rules governing the conduct of lobbyists. For some reason the House committee didn't have any interest in what I had to say, but I appeared before the Senate committee holding hearings into Bill C-2, the Federal Accountability Act, and spoke specifically on lobbying law and talked about strengthening it. It was already a very strong bill, mind you.

    I appeared by teleconference before the legislative committee of the province of Alberta that was considering the introduction of that province's first lobbying act. I have appeared before the city of Toronto's council, and I also made representations to the legislative committee in the province of Ontario, urging the strengthening of lobbyist regulation at the municipal level. I've been consulted internationally by the Republic of Ireland, for example, and other OECD countries that are interested in adopting their own lobbying law regimes. I have extensive experience.

    I wouldn't necessarily say this of me, but someone said I was one of the leading experts, at least leading experts outside government, on the law and the regulation on the business of lobbying. It's something that before coming here I believed in quite passionately, for the reason I've identified, and that is, whether we're talking about government resources, taxpayers' dollars, government information, government records, the networks a public servant or a political staff member accumulate, none of that information, none of that money, none of those networks belong to individual politicians, staff members, or bureaucrats; they belong to Canadians. That's why it's important to have a strong lobbying law regime, strong access to information regime, and strong accountability rules generally.

    Hear, hear. Thank you.

    Mr. Siksay.

    Thank you, Chair.

    Mr. Giorno, you've noted you had to write a number of times in February and March to political staff to remind them to uphold their obligations to the Access to Information Act. Is it a usual thing that you have to contact political staff to remind them of their obligations under the law?

    Mr. Chairman, I won't say it's usual or unusual; it's something that is done. Obviously as one communicates rules and expectations, one is always mindful of the context. Therefore, as circumstances arise that make it advisable to refresh, re-communicate, someone in my position does that.

    Why did you have to do it so many times in recent months on access to information?

    Obviously this is a topic of interest to the committee, and it's a topic of interest to me. Just as the committee has seen this as a priority, something that's relevant and on the committee's mind for obvious reasons, in early 2010 it was also on my mind for probably the same reasons, and that's why I felt the need to reissue those communications.

    Mr. Giorno, you still insist you weren't taking those actions in light of news reports that have appeared in the media exposing problems with access to information. Weren't they exactly the stimulus that caused you to have to remind political staff of the government's commitments and their obligations under access to information?

    Chairman, the member's question allows me to repeat but clarify a previous answer. I was referring to anonymous commentary in media stories, and my position on anonymous commentary remains the same. If the member is referring to non-anonymous commentary--that is, reports of facts--I, like everybody else in this city, take cognizance of what is happening and act accordingly. The committee has renewed an interest in this topic because of recent events. My communication was renewed in light of circumstances.

     It would be interesting to see the timing of your reminders and the news stories that came out.

    Can you explain to me the role of the issues management wing of the PMO?

    I think I've answered that. The issues management staff is responsible for helping prepare the Prime Minister to participate in question period. In that respect, their role is no different from that of prime ministers' offices in previous ministries. They help to prepare other ministers. They work with the staff of other ministers to help ensure other ministers are prepared for question period.

    Questions are raised and accountability is expected, not just during question period when the House of Commons is sitting, but at all times, every day, 52 weeks of the year, seven days of the week, 24 hours a day. They may be asked by a reporter, a stakeholder, or otherwise. So they perform a similar function when the House of Commons is not sitting and there is no question period. They prepare and assist the Prime Minister to answer questions, or work with the staff of ministers to ensure they are prepared to answer questions about what is usually au courant, or topical.

    Would that branch of the Prime Minister's Office ever give verbal directions on slowing down, delaying, and stopping ATIPs altogether, or transferring ATIPs to the centre?

    I think I have answered that. The responsibility for access to information has been delegated by each minister of the crown to specifically named public servants. They're named in the delegation orders. Those delegation orders are, as far as I understand, publicly available on each department's website.

    No political staff member has received a delegation of authority under the Access to Information Act; therefore no political staff member is entitled to make access to information decisions. Further, the Prime Minister's own rules in Accountable Government provide, at page 37, from which I read in French, and will read in English:

    Were political staff who gave any push-back to issue management staff in the regular briefings they have ever insulted on the phone before all their colleagues if they contradicted or questioned any of the advice on ATIPs that was being given to political staff by issue management staff?

    That's a similar question with the same answer. The rule is clear: responsibility for access to information has been delegated to specifically named public servants. No political staff member has received such a delegation of authority under the act; therefore no political staff member should be making access to information decisions. No political staff member should be instructing public servants in the discharge of their responsibilities under the act. It would stand to reason that nobody should suffer any adverse consequences for complying with the rules in Accountable Government.

    Sorry, Mr. Siksay.

    Mr. Valeriote, please.

    Mr. Giorno, you indicated that you don't investigate non-specific allegations of a violation of the act that might be found in a news report.

     Mr. Togneri was a specific case. Can you tell me to what extent you investigated his de-releasing of a report that was otherwise released? If you investigated that, what was the result?

    The member has asked a specific question about Mr. Togneri. As he will know, that is the subject of an investigation by the information commissioner, so it would be inappropriate for me to comment on something she is investigating.

    However, I believe the media story covering the issue broke or appeared on the wire on Sunday afternoon, February 7. The article was brought to my attention at that point, so that's when I first learned about it. There was follow-up. I won't speak to the specifics of what happened, but I think the current Minister of Natural Resources has already made clear the steps he took within his office to address that situation.

     All right. Thank you.

    Now, just for the record, in response to Mr. Poilievre's comments about the record of this Conservative government, it should be noted that the percentage of requests where all information is disclosed has fallen dramatically since this government has come into power, and the percentage of complaints filed with the information commissioner has increased dramatically. I think we need to set the record straight.

    That said, in this morning's press conference the information commissioner said that there is a “lack of will to be transparent”. She also said that Canada is “no longer a transparency leader”. This is Canada's information commissioner. She also said that we need to change the legislation, essentially to force the government to comply with time requirements.

    What that tells me is that, notwithstanding that you may have been operative in creating this kind of law when you were practising law, just because you participated in making the law doesn't mean you feel a necessity to comply with it.

    Frankly, Mr. Giorno, it seems to me that the only reason the information commissioner would recommend changing the law is because of this government's systemic problem with always bending and pushing the envelope, at every level.

    Could you tell me why you would think the information commissioner would want to change the law to force compliance? And if that is a valid request, would you suggest to the Prime Minister that he change the law?

    Mr. Chairman, if the member is asking me to get inside the head of the information commissioner, I won't purport to do that.

    I will state, however, that as an independent officer of Parliament, the information commissioner is held in high regard. I certainly have, and the government has, a lot of respect for her advice. Any advice given by the information commissioner will be taken by the government and reviewed. The government will look at her recommendations quite carefully.

    But if the member is asking about a particular reform, such as the one that, as I understand from the member, has been proposed, it sounds very similar to a proposal that existed for a few years--I think it was November 15, 2005, in Journals, division 180--where members of the Liberal Party voted against such a recommendation.

    So I'm not sure whether the member is asking me what the government's position is on something that the Liberal caucus voted against five years ago....

    Mr. Giorno, let's be clear. We're talking about facts of today, not facts of 2005. We're talking about this government's non-compliance with the legislation today. That's what is important. That's the issue before us today.

    Let me ask you another question. To be absolutely clear, are you denying that any instruction or direction was ever given to any political staff to interfere in any way with any access request, either generally, by the press, or under the act?

    Mr. Chairman, I disagree with the member. That's why I talked about my background. I was happy to do so, because I think the past does matter.

    I believe very strongly--

    That's not the question, Mr. Giorno.

    --in access to information--

    I'm asking you to answer the question.

    Mr. Valeriote, you're done.

    --and I do not believe access to information is a political football to be shunned while in government and embraced only in opposition. It's a principle that applies at all times.

    That's why this government came in, turned the page on what had happened in the past, brought in the toughest anti-corruption law in Canadian history, improved and strengthened the Access to Information Act, and improved a much weaker--under the previous government--access to information policy. That's why those changes were made and that's why they're important.

    I accept the premise that there is always more to do, but I don't accept the premise that one can jump back and forth and change a position on such a vital matter, which, the courts have identified, is not just any law; it's actually quasi-constitutional in nature because it is so important to the very fabric of our democracy.

    I'll ask the question again.

    Order.

    I'm sorry, Mr. Valeriote; unfortunately, your time is up.

    We have to move to Mr. Rickford, please.

    Thank you, Mr. Chair.

    Good morning, Mr. Giorno. Thank you for taking the time to meet with us despite your very busy schedule.

    I have two questions, but some background on your experience in today's topic is in order. I know that you are a lawyer and your previous practice of law is certainly one of the reasons why you are qualified for the position of chief of staff in the Prime Minister's office. You are fully versed in legislation and the statutes dealing with government accountability, lobbying and anti-corruption measures. I have the following questions.

     I was wondering if you could expand a bit on those substantive pieces, namely government accountability, lobbying, and anti-corruption, and tell us how the Federal Accountability Act helped to address them more fully.

    Chairman, the member has asked me to talk further about some of the changes that were contained in the Federal Accountability Act. I'll start by talking about access to information before turning to other areas.

    There were a number of other changes to the Access to Information Act that, even today, haven't received, I think, the attention or the publicity they should.

    The definition of “record” was updated in the statute, and that's important, because the old definition of “record” used to be restricted to things on a long list of different types of media, different forms in which information could be contained in records. In order to make the act technology-neutral or to allow it to keep up with the advances in technology, as information-keeping and record-keeping practices change, there is now a very simple definition. It removed the long list, and it says:

    Of course, that's a pro-access improvement, because it means that as technology changes, everything in government's possession is subject to the act.

    The Federal Accountability Act also added a new section to the Access to Information Act--I believe it was section 72.1--which provides the following:

    —in other words, a cabinet minister—

    That, again, is new in the Federal Accountability Act.

    The act also added a new paragraph 70(1)(c.1), which provides that the minister responsible shall, and I quote:

    Finally--and this is probably the most significant of the reforms, apart from nearly doubling the list of entities.... Chairman, earlier today members asked about this, and concerns prior to 2006 that different types of requesters—news media, opposition researchers—were treated differently are well documented. Of course, that's not what the act provides. The act provides that the processing of requests should be “applicant-blind”, to use the term that's used in the United Kingdom in their freedom of information legislation.

    So subsection 4(2.1) crystallizes the requirement that the processing of requests should be, and I quote, “without regard to the identity of a person making a request for access to a record under the control of the institution”. And that was intended to address well-documented and legitimate concerns about different access being given to different types of requesters.

    The courts have made clear--and this is the principle of not just this act, but freedom of information legislation in the provinces and around the world--that if Fred makes a request for a record, he should receive the same decision Sally receives, as should John, as should Jane, and that when a news reporter makes a request, he should receive the same determination under the statute as would an opposition researcher, a stakeholder, or an ordinary citizen. Clarifying that and improving the access to information policy I think were important reforms.

    And I apologize, Chairman, because I don't even have time to talk about the changes in the Federal Accountability Act that are not related to access to information.

    You could do that at another time, possibly.

    Colleagues, I can't accommodate everyone, but I want to be fair and balance this. We have enough time to go through the third round, but at three minutes. That's basically one question per questioner, okay?

    We have Madam Foote, Mr. Poilievre, Madam Freeman, Mr. Bezan, Mr. Siksay, Mr. Valeriote, I believe, and Mr. Poilievre to wind it up. There are seven people at three minutes each, and we'll be done. Okay?

    I do not understand, Mr. Chair. How are you handling the third round of questions?

    Instead of a five-minute round, it's a three-minute round.

    Carry on. Let's go.

    Madam Foote.

    Thank you, Mr. Chair.

    I want to go back to the question that my colleague asked earlier. I just want to be absolutely clear that you are denying that any instruction or direction was ever given to any political staff to interfere with any access request, either generally, of a routine nature, or under the act.

     Chairman, I think the member inadvertently is putting words in my mouth. I can speak to what I know. What I know is the policy and the expectation, both of the Prime Minister and of me. Those expectations, those rules, have been communicated and re-communicated. They're very clear. No political staff member has received a delegation of authority under the Access to Information Act; no political staff member has authority to make access to information decisions.

    Are you aware of any cases, then, where staff has in fact interfered in either media requests for information or requests under the Access to Information Act?

    Chairman, I've already answered this question. To return, one has to distinguish.... I understand the member in her question may think that media requests are not under the act and requests under the act are to be treated identically, and they are slightly different. As I explained, there is a good reason, Chairman, that requests from the media, just like requests from stakeholders or requests from other people not under the act that relate to government policy or positions, would of course have the involvement of the minister's office and the minister: because ultimately it's not a non-partisan public servant who could be expected to give a reporter or a stakeholder an explanation of the political position of the government on a particular matter.

    I guess I'm trying to get some clarification. You look at the Togneri situation. So other than Togneri, which you say now is being investigated by the commissioner, are there any other examples that you're aware of where's there been interference?

    Chairman, I repeat my previous answer, although I invite the member, if she has those examples, to bring them to my attention.

    Go ahead.

    So to the best of your knowledge, at this point in time, there has been no interference by any political staff in any requests for information, whether routinely or under the act.

    Chairman, it's a similar question, in fact the same question, and the same answer. The expectations of the Prime Minister, the expectations of me, are clear and are constantly communicated. If the member has a specific example, I'd be happy to take that up with the minister in question.

    Mr. Poilievre, please.

    Mr. Giorno, you've had occasion to talk to us about the experience that you've accumulated as a private citizen prior to becoming chief of staff to the Right Honourable Prime Minister. In your role, you've seen the ratings of certain departments experience improvements under the Access to Information Act. I look at the Department of Justice, for example, which went from an F in 2004 to an A in today's 2008-09 rating by institution. What, in your view, has led to these improvements?

    Chairman, I'll be consistent in my answering. Decisions about the Access to Information Act are made by members of the non-partisan public service who have received specific delegations of authority. They do so without taking instructions from political staff members because it's inappropriate for a political staff member to give instructions. It would be a violation of accountable government. And of course no political staff member has received a delegation of authority under the Access to Information Act; therefore no political staff member has authority to make access to information decisions. It therefore follows that any credit for these improvements goes to the credit of the public servants who are making these decisions and their deputy ministers.

    On behalf of the Clerk of the Privy Council, who is also the former Secretary to the Treasury Board specifically responsible for access to information, I'll accept your compliment and pass it on. But, really, it's deputy ministers, the Clerk of the Privy Council, and the Secretary to the Treasury Board who are responsible for ensuring that those public servants are compliant with the act in discharging their responsibilities.

    In other words, this government has enjoyed a fruitful working relationship with the public service and delivered successes because of that hard work. I think you're quite right to give credit where it is due, with the hard-working public servants who are administering these rules properly.

    You commented extensively on the Federal Accountability Act, but you were constrained by time. I want to give you an occasion to highlight other areas that you think deserve to be underlined, given your experience in the area of access.

     I suggest the member might look at the changes to the Lobbying Act. The Lobbyists Registration Act was renamed the Lobbying Act. The former registrar, who was an employee of the Department of Industry, was made an officer of Parliament. So having that protection, independence, and autonomy was an important change. The five-year ban on lobbying by former designated public officers was another key reform.

    Changes were made to the Canada Elections Act to remove the influence of big money--no more secret trust funds, big money donations, and corporate and union contributions. There were, of course, complementary changes to the Privacy Act and a number of other statutes in that respect. Changes in the act to procurement practices--advertising, polling, contracting--are all worthy of mention.

    On the Federal Accountability Act, a lot of hard work was put in by members of all parties in both houses of Parliament, but it stands on the books as the most comprehensive anti-corruption law in the history of Canada.

    Thank you.

    Madame Freeman, s'il vous plaît.

    Good afternoon. As a follow-up to what Mr. Poilievre said, I would like to go back to your numbered document. The Privy Council, which receives access to information requests about the Prime Minister, refuses to reply to one in five requests, when it replies, and takes five times as long as the act requires when it does so. That was my comment.

    In reply to the questions asked by my colleague Mrs. Thi Lac and by Ms. Foote, you asked if she could give you a specific example of interference by political staff. I am going to talk about one such case where interference is alleged. The Canadian Press referred to it like that in several papers.

    Under the Access to Information Act, The Canadian Press asked for a document on the use of federal buildings when Mr. Paradis was Minister of Public Works. When the document was about to be sent, a member of the political staff, Sébastien Togneri, the parliamentary affairs director, ordered that the document in question be intercepted.

    Were you aware of this incident? If so, I would like to know what steps you took, given that Mr. Togneri is still in his position.

    Is my question clear this time? This is the third time I have asked it, but you have never...

    First of all, the member has asked many questions. I think each of the sub-questions is clear, but many of them are answered by the same answers as before.

    Excuse me, Mr. Chair, he is using up my time and my question is very clear.

     I'd like to let the witness have an opportunity to respond. You will have some time to ask one last question.

    The member asked a general question about the conduct of the staff members. I can speak to my conduct and my expectations. I refer to my previous answers. My expectations and those of the Prime Minister are clear and constantly communicated.

    Excuse me, Mr. Chair.

    The member referred to the Privy Council Office. Obviously that's something of concern, but the Clerk of the Privy Council could speak to that in more detail.

    As to the third question, on Mr. Togneri--

    That is out of order.

    I'm going to let him answer. You have time for another question.

    Mr. Chair, as a member of Parliament, I have a right to a certain number of minutes. It is my time. The witness is refusing to answer my questions clearly. I repeat, my question was quite clear. Mrs. Thi Lac and Ms. Foote asked the same question and he refused to answer them. He wanted a specific example and I gave him one. I asked him whether he was aware of the incident, yes or no. It is simple, he can answer yes or no. If it turns out that he was aware, I would like to know what he did about it.

    That is all the time I have, I think. Thank you, Mr. Chair.

    Thank you.

    Point of order.

    Just a moment.

     Our practice has always been proportionality. To ask for a yes and a no in some cases requires some explanation, and we give that latitude to the witness.

     Madame, I stopped the clock to make sure you have another question. There were three elements to your first intervention. He was giving an answer to the third one. In fairness, I have to give him an opportunity to complete the answer to the third element. Then I'll go back to you for one more question, if you wish. That is about splitting the time evenly between questioner--

    Excuse me, Mr. Chair, but there were not three parts to my question. There was only one part. He needed an example.

     Madame, we're into debate.

    Mr. Giorno, please proceed.

    I apologize, Mr. Chairman. I've appeared before committees before, but this is the first time I've appeared in my current role. Sometimes witnesses have difficulty distinguishing between preambles and questions.

    In response to the third element of the question related to Mr. Togneri, I first learned about the situation sometime in the afternoon of Sunday, February 7, when the media story ran. I think it ran between 3 p.m. and 4 p.m. Whether I looked at my BlackBerry between 3 p.m. and 4 p.m or later that evening, I was first aware of that.

    Obviously this is something that is being investigated by the information commissioner, so I don't want to go too far into drawing conclusions. I will say that the current Minister of Natural Resources has talked about the changes that have been made within his immediate office in response to this. Other than that, it would be inappropriate for me to comment on any disciplinary action that may be taken, because that's sort of personal information. But the comments of the Minister of Natural Resources are clear and I believe are on the public record.

    Thank you.

    Madame, you have one more minute.

    If I understand correctly, you were informed of the matter, you took it under advisement, but you did not get involved because it is the minister's responsibility to do that.

    No, Chairman, that's--

    The term I used was a legal one. You are a lawyer and so am I. You cannot pretend to not understand the term I am using or the question I am asking.

    I think he understands.

    I hope so.

    I hope so too.

    That's okay. We're almost finished.

    Carry on.

    Point of order.

    Chairman, the member shouldn't mistake my disagreement with her premise for lack of understanding. I was made aware of the situation by a news report that came out on Sunday, February 7, so that was after the events. I became aware of it then, and it was after that that action was taken.

    Thank you.

    Mr. Bezan, please.

    Mr. Chair, on the point of order that was raised, I believe it's the responsibility of the chair to accept those points of order, but I'm going to make use of my time judiciously.

    I want to thank Mr. Giorno for appearing before our committee today, for showing that his knowledge is very well founded in access to information and privacy legislation. He has been very clear in his answers and has provided clarity to the discussion taking place here today. Also, I appreciate his personal convictions to ensure that not only the act as it stands today under the Federal Accountability Act but also the spirit of the act is respected by ministers. So I do appreciate that.

    I also want to congratulate him for his role in being diligent in ensuring that he trains staff, goes over those rules, and explains to them their fiduciary duty in providing access to information on behalf of Canadians. I think that's a very important role, and I do want to congratulate him for taking that on.

    As we know, you're not only the chief of staff to the Prime Minister, but you described your involvement as a lawyer in access to information legislation and that you were previously employed at the provincial level as well. So I wonder whether you'd be able to have any discussion on any personal experiences you might have had to deal with in the past with political interference in trying to obtain access to information.

    Chairman, I referred to the four-year battle with the City of Toronto involving six separate decisions related to the sale of the street lights. It was certainly our belief that a large part of the stonewalling or the obstruction there was the result of political interference. So as I said, I didn't leave private practice and expect to come here, having championed openness and transparency and having fought political interference, to allow anything different here. That's why I was pleased that the rules on accountable government were clear in the expectation that the Access to Information Act would be upheld, the act already having been strengthened by the Federal Accountability Act. The rule against not instructing public servants is very clear in Accountable Government, so I have continued to communicate those expectations and to make very clear where I stand and where the Prime Minister stands on these matters.

    Do I have more time?

     You have half a minute.

    Mr. Giorno, earlier you were referring to the rules the Treasury Board has brought in, which clearly describe the prohibition of political staff leaking ATI determinations. Those rules are binding on all staff employed through ministers' offices?

    Chairman, to be clear, I think the governing authority is accountable to government. Compliance with that is a condition of continued employment for all political staff members. The Treasury Board policy on access to information is inspired by that and it's also binding, but I would say the more important document is Accountable Government. Section 6.1.2 of the Treasury Board policy states that “Once an order is signed, the powers, duties or functions that have been delegated may only be exercised or performed by the head of the institution or by the named officer(s) or employee(s).” But that's not as clear a prohibition as in section 6.1 of Accountable Government, which I've read for members of the committee.

    Thank you.

    Mr. Siksay.

    Thank you, Chair.

    Mr. Giorno, as much as I like a good tennis match, it would seem the Conservatives and Liberals go back and forth about who was bad and who was worse. I look forward to the day when maybe it's who was bad and who was better on this issue. Certainly we're not there yet.

    I also have to say that I always enjoy a very partisan guy struggling to be non-partisan. It's been interesting to watch you in that role this morning.

    I have to say the Liberal government isn't the standard around access to information. I think the standard around access to information is easily the Conservative Party's own platform in the 2006 election. Anyone who has any interest in access to information would agree it was a well-thought-out and comprehensive platform. I suspect, given your own personal interests in access to information that we heard about this morning, you're well aware of that platform.

    The platform had eight points. When I look at that and when I've questioned witnesses since I've been on this committee, it appears the Conservatives have only done one—the Federal Accountability Act and the expansion to all crown corporations. We haven't seen an introduction of the information commissioner's proposed changes or reforms to the Access to Information Act. We haven't seen the commissioner get the power to order release of information. We haven't seen cabinet confidences that are excluded reviewed by the information commissioner. We haven't seen public officials obliged to create records necessary. We haven't seen a public interest override for all exemptions. We haven't ensured that exemptions from the disclosure of government information are justified only on the basis of the harm that would result from that disclosure. We haven't ensured that disclosure requirements for access to information can't be circumvented by secrecy provisions in other federal acts.

    It strikes me that by that standard, you're not doing as well as you'd like us to believe. What's your comment on that? What's the plan? Is there a significant commitment, or have the Conservatives forgotten what it was like to be in opposition and how important access to information is to the functioning of Parliament and to our democracy?

    Chairman, if the question's asking me to rate the improvements, I don't think it's my place to do that. I know that members of the committee have been discussing this for a long while. I accept at least this part of the premise to the question: that there have been improvements. I know that members of the committee on all sides have been debating for many years whether there's more to do and what to do.

    I think the specific answer to the specific question is that the Minister of Justice has responsibility for the government's access to information policy. I'm referring to the policy of what the legislation ought to say and ought to read. I would invite members of the committee to address those specific questions to him, although I note the member correctly identifies that I do follow this issue, and I know it has been an ongoing debate among members of the committee for many years.

    Thank you.

    Mr. Valeriote.

    Mr. Giorno, I'd like to refer to a number of memos you've sent to staff about their need to comply with the legislation. Would you be willing to provide copies of those memos to this committee?

    I'd be pleased to do so, in both official languages.

    Thank you, Mr. Giorno.

    Are there any other cases that are not now publicly known, neither reported in the press nor otherwise, where any political staff has been interfering in an access to information request?

    Chairman, it's a similar question. I think I've already answered that. I can speak to my conduct, to the extent of my knowledge. I can speak to the expectations I have and how they've been communicated. They are also the expectations, standards, and rules of the Prime Minister.

     Can you speak to your knowledge then?

    I can speak to my knowledge. The rules are very clear. Ministers have delegated their authority under the Access of Information Act to specifically named public servants. Those public servants are the ones who are responsible for making access to information decisions. No member of the political staff has received a delegation under the act, and therefore no political staff member has authority to make an access to information decision.

    So none have then. You're telling me that none have.

    I know the rules. I want to hear you say, yes or no, “none have”.

    I think that has been asked many times, Chairman. I think I've answered it many times. I'm here. I can speak to my conduct and my knowledge. My conduct, my knowledge, my expectations are quite clear. They have been communicated many times. They're also the expectations of the Prime Minister.

    No political staff member has authority to make access to information decisions, and it is a breach of the rules in Accountable Government for a political staff member to purport to give instructions to a political staff member related to an access to information decision.

    Are you aware of anyone breaking those rules? Yes or no. I'm looking for a simple answer.

    Point of order, Mr. Chair. Under the rules of O'Brien and Bosc--

    Order.

    Mr. Chair, I'm raising a point of order.

    Just a minute. First of all we have to turn off his mike and get him to stop talking, and I want him to stop the clock so he doesn't lose the rest of his time. And then I'll recognize Mr. Bezan on a point of order.

    Thank you, and this is a point of order.

    As I described earlier, in chapter 20 of O'Brien and Bosc, starting on page 1068 and going on to 1069, public servants can decline an answer to specific questions.

    Mr. Valeriote is badgering the witness and trying to get him to answer a legal opinion, something the witness has already said is not in his knowledge and is outside his area of responsibility. The common practice, and the one that's described in our rules of procedure, is that we excuse the witness from having to answer.

    We have a member who is badgering a witness. I don't believe that is in line, and I think you need to call him to order on it.

     Mr. Bezan, you're quite right. When a witness appears before a committee, refusal to answer is not applicable. However, if a witness cannot answer because the question is beyond their responsibilities or scope, and there's a good reason, the witness would then raise that with the chair and the chair will determine whether or not the witness will be permitted not to hazard....

    It's not for us to make that decision for the witness; that is the essence of the rules. But it is ultimately up to the witness to determine whether or not they're going to stray beyond their knowledge or expertise.

    In that case, Mr. Chair, if we read the rules the way they're drafted, if we want him to go beyond that it's actually the committee's decision. If they want to get confidential type of information, then at the committee's discretion we have to allow the witness to testify in camera. If that's the desire, then that's the way to go. Otherwise, it's out of order.

     Let's put it this way: he can ask any question he wants, but if the witness is unable to answer because it violates some other proscription, he can say so and the chair will rule on that. But it's not for us to make the decision for the witness. We had this in the Mulroney-Schreiber hearings several times, and we respected that rule.

    I think everybody understands. Mr. Giorno is quite familiar with what he can and cannot deal with.

    Do you have any more to say on the last little question of Mr. Valeriote? There is one minute left to ask one more question.

    Thank you, Chairman.

     I think I've answered the question already. I can't comment on the specific Togneri matter. I told committee members when I became aware of it. I referred to the fact that the Minister of Natural Resources has communicated what has been taken. Other than that, I'm not going to comment about discipline or potential discipline, because it's a personal matter. And I'm not going to comment on an ongoing investigation by the information commissioner, although I will add that I am, as I expect all members of the committee are, looking forward to receiving her findings.

    As to--

    Can I ask one more question, Mr. Giorno?

    Mr. Giorno, please complete your sentence.

    As to my conduct, my practice, my expectations--I have answered that many times--they're clear. In fact I was pleased to appear before the committee for that reason, because my expectations are clear, and my conduct has been clear since I came here on July 1.

    Thank you.

    Finally, Mr. Poilievre.

    I think that concludes my questioning.

    Thank you.

    Mr. Giorno, thank you, on my behalf, for appearing and for responding to the members' questions.

    There's only one issue that I would like to raise with you. It's something that has come up and that I think you may be able to assist with. It has to do with the fact that the position of information commissioner has been vacant for nine months. It's a significant delay. I know that there were a number of candidates. I don't know who they are. I do know that the current acting commissioner is one of the candidates. But I do know that with a seven-year appointment, a new appointee, once they get that appointment, can root themselves into a seven-year plan to do a good job on behalf of Canadians. The delay is causing some concern. So if there's anything you could possibly do to encourage those responsible to complete that process, please do so. I think you understand what I'm asking, and I hope that we would be able to see that position filled within a reasonable time.

    I thank you, Chairman, for those comments, and I will take them back.

     I'll simply say two things. Obviously, as you're aware, and you've alluded to this, the appointment of officers of Parliament is something that involves all parties in the House. That's known. But the second point, and it's implicit in your remarks, is the fact that the Parliament of Canada has decided to make the position that of an officer of Parliament actually does indicate the significance and importance to the country and to Parliament of that position. Therefore your comments about the importance of that position are very well taken.

    Thank you.

    The meeting is adjourned.