Information & Ethics Committee on April 24th, 2013

[Voices]

Oh, oh!

[Suzanne Legault]

Not quite.

[John Carmichael, Conservative, Don Valley West, ON]

In both reports you spoke about your two major infractors, CBC and Canada Post, in terms of your report card and some substandard results in that area.

Could you talk to us about progress you've made over the course of that timeframe? Have you seen an improvement in those organizations that would give you hope, or are we still dealing with challenges that are going to linger for a while?

[Suzanne Legault]

In relation to the CBC, definitely in terms of responding in a timely manner the CBC got an A in their last report card. I have virtually no administrative complaints with the CBC that have come in. I think I have four or five—nothing to report on, really.

This year we received a low number of complaints with the CBC. I have spoken to the president of the CBC. He is collaborating fully with our investigations. We meet regularly with his team. We are committed to completing the 200 or so remaining investigations.

We will probably at some point come to perhaps an unresolved case in relation to the interpretation of that new provision. It's a new provision. There is really no jurisprudence on it.

When we went to the Federal Court, it was in relation to my ability to see the documents. It wasn't about the specific wording of that provision. Aside from that, there is nothing to report.

Canada Post did send me a work plan following the last report card. They did still get an F. They assured me they were going to make progress, but in truth I have not followed up with Canada Post since the last report card. I haven't seen an influx there that's particularly worrisome, but they do have challenging investigative files with us, for sure.

[John Carmichael, Conservative, Don Valley West, ON]

Thank you, Commissioner.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

Mr. Boulerice, the floor is yours.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chair.

Thank you, Ms. Legault, for being with us today.

My first question is more general in nature.

The government often trumpets its transparency, but it is known more for its lack of transparency, preferring to shroud itself in a foggy haze. In its last report, Reporters Without Borders dropped Canada's ranking from 10th to 20th with respect to freedom of information. According to observers such as the Centre for Law and Democracy, Canada lags behind other countries in access to information. Scientists and librarians have been muzzled, and reports have been deliberately hidden because they called Conservative government positions into question. The Parliamentary Budget Officer even had to go through the courts to obtain information.

Doesn't and shouldn't that type of attitude concern you as the Information Commissioner?

[Suzanne Legault]

As you know, part of your question pertains to investigations that are currently ongoing at the Office of the Information Commissioner. So I cannot comment on specific matters. I was expecting to be asked about government transparency, which may surprise you. I thought long and hard about how I would answer. And I think it's important to be fair and balanced in my answer.

The document I provided contains a diagram. It shows that government transparency is made up of a number of components. What we have here is the open government component. And as I told you earlier, I think the government has made significant strides in that regard. When it comes to the access to information component, I firmly believe we are lagging behind other countries. I think the Access to Information Act needs to be reformed. The report by the Centre for Law and Democracy compares the legislation of Canada and other countries, and it appears that changes are indeed necessary.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

We have just five minutes.

You wrote to the President of the Treasury Board, and one of your recommendations was precisely to make legislative changes. You said in your report that the matter concerned you.

Did you receive a positive response from Treasury Board?

Was there some commitment or follow-up from the government as far as possible legislative changes go?

[Suzanne Legault]

Not with respect to legislative changes. My colleagues and I wrote to the President of the Treasury Board regarding the international open government partnership initiative. We were told that the government would endeavour to make administrative changes to the access to information regime. That is what the government is doing now, but I didn't get a positive response regarding the legislative changes.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you for clarifying that. I think it's very important.

I would like to read a quote in English by David Akin, since the text was obviously written in English.

Please take notes. I'm quoting from David Akin's article entitled “30 years of ATI: And it’s getting worse”. He writes:

For example, the Department of Foreign Affairs and International Trade (and possibly other departments) are now trying to frustrate ATI requests by requiring “preparation fees.” I complained about this to the Information Commissioner, the Commission saw the sense of my reasoning, and called on Foreign Affairs Minister John Baird to get his department to modify its practices. He told Commissioner Legault to forget about it.

What do you make of a Conservative government minister taking such an attitude on access to information requests by members of the media?

[Suzanne Legault]

My position on access to information fees is clearly at odds with the government's, especially as regards how the legislation and regulations on fees are being interpreted. We have a clear difference of opinion. I have tried to address the problem in numerous ways, but to no avail. So I took the matter to the Federal Court, and we'll see what it decides.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Very well.

During your presentation, you said,

I don't have a sufficient number of people.

You said that things went well when you had investigators but that you had to undergo staffing cuts. This government claims to be transparent but, to some extent, is taking the same approach it did to tax evasion. The government said it wanted to tackle tax evasion, but it reduced the number of people doing the work at the Canada Revenue Agency. In your view, have the government cutbacks affected requester's rights?

[Suzanne Legault]

I can comment more specifically on the Office of the Information Commissioner of Canada. As I already pointed out last year when we reviewed the main estimates, I indicated that if the office's budget was slashed even further, it would affect our ability to fulfill our mandate. I believe that is the case.

As for the system overall, ATI requests are rising and have risen dramatically. I know the minister said otherwise, but to my knowledge, there hasn't been any additional funding for access to information. Without any confirmation at this stage, what I have observed over the past year leads me to believe that access to information problems are definitely present at the RCMP, the Canadian Food Inspection Agency and Parks Canada. Administrative complaints over the last fiscal year have gone up by 8%. That's a reversal in the trend we saw in the three previous years, when we observed a decrease in complaints. Something is happening in the system. Once we have the data for 2012-13, which is not yet available, we will be in a better position to assess what's going on.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answers.

I will now turn it over to Mr. Butt, for five minutes.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you very much, Mr. Chair.

Ms. Legault, I want to congratulate you and your office very much. Your reports clearly show that you're making tremendous progress, that you are providing very good service as long as you have cooperative agencies that you are working with. Then we have agencies like the CBC and some of these other crown corporations that have made a decision that they're not going to cooperate—Canada Post and others—and I'm sure you must be frustrated. I think we as parliamentarians are frustrated by that as well.

One of the questions I have for you is, how do you determine the level of investigation of a complaint? How do you weed out nuisance complaints or bulk complaints that come in from one complainant who files multiple applications or multiple requests for your office to look into things?

I know this has been a problem in the city of Mississauga, where I'm from, with its municipal ATIP program, where there have been two or three individuals who have barraged the office. I'm not familiar with how you deal with that. Maybe you can enlighten the committee.

How do you make sure that you're prioritizing legitimate, responsible requests for service in your office versus ones that are really nuance or nonsense complaints from complainants? Do you have a process to determine that, and how do you and your excellent staff make that decision?

[Suzanne Legault]

When I say that the access act needs to be amended, there are good reasons for that. There is nothing in the federal legislation to address potential abuses of the access system, either at the request level with institutions or with my office. In my office, I have a positive legal obligation to investigate. It says in the act, “investigate”, so whether there are complaints that seem to come in bulk or that seem perhaps to be resolved very quickly...I essentially have to deal with all of them. I deal with the administrative complaints, and these go to one group. We're dealing with the old complaints—they go to another group—and then the rest get allocated mostly to portfolio responses.

There is no discipline system in the act as it stands. I don't have discretion to take a case or not.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Is your office charging any fees? Are you recovering any revenue to do the services you are doing?

Again, in the case of the City of Mississauga, there is a fee to file an ATIP request, and depending on how many copies the response is, there could be a photocopying charge, etc., so that the agency being requested of this information isn't out of pocket.

Currently, you are not charging any fees at all associated with the services your office is providing on a cost-recovery basis.

[Suzanne Legault]

No. If somebody makes an access request to an institution, there is a fee, and there are charges that apply for photocopying, searches, and so on. There are no fees to complain to my office. When we take matters to court, as a matter of general practice we don't ask for costs. We're usually pitted against government institutions anyway, so it all goes back to the consolidated revenue fund. I don't think it makes sense to ask for costs.

My experience with fees is that they do not act as cost recovery; they do not act as a good discipline in the legislation. They are probably one of the biggest inefficiencies that we see in the system.

I have a case that I will report on in my annual report that deals with a fee of less than $500 that was charged by a government institution. It had to go through the whole complaint process, all the way up to the minister. That's completely inefficient. That should have been waived.

It costs the system and the taxpayers more to charge those fees than to answer the request. It would be simpler. For me the fees in access to information will never act as cost recovery. In my experience, I think they cost the system more in terms of financial accounting in government, because of the complaints, the delays, and the processing of the fees. I think somebody should study this, because it is not useful as cost recovery, and if we want discipline, we should look to other legislative mechanisms in the law to prevent nuisance actions.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Each year when you publish your report card and you give agencies ratings A through F, etc., some go up and some go down. When you're looking at that, what's your follow-up with those crown corporations and agencies? As an example, I think you said you gave an F this past year to Canada Post.

Maybe they're completely caught off guard. Maybe they think they're doing a good job. I don't know. You've rated them and you came up with the rating of F. It was F one year for the CBC, but A the next year, so obviously something happened. What follow-up do you and your people do with those agencies or government departments to make them all As? We want them all to be As, and I'm sure they want to be As, but they're not.

Do you take specific steps? Do you contact them very quickly thereafter and tell them you're happy to provide your staff resources to help them, so that they have a system in place that gets them that top grade the next time the review is done? Maybe just take a minute or two and explain how you interact with those departments or agencies to improve their performance.

[Suzanne Legault]

It depends on the agency.

For the report cards, it was a three-year plan. We did one year and then they had to have an action plan. Then we gave them a year to basically implement it, and then we went back after the third year. That's where we saw a major improvement in those institutions.

I haven't done one since then. In the last exercise, I asked people to report in their annual report. Every body that is a scheduled institution under the act has to provide a report to Parliament every year on their performance. Because I was trying to reduce the burden on institutions, I said to please report on their progress on my recommendation in that same report. Instead of my doing another report and asking them to give me a separate thing, I said to do it in there. I review the reports as well. We'll be able to monitor that way, to see if they're actually moving forward or not.

I must say, though, that when you look at the list of the main institutions that generate complaints to my office, they're pretty much the same group. What we do now is the assistant commissioner actually sees CBC, CRA, and Privy Council Office regularly. We now have contacts with Transport Canada, Health Canada, and various institutions. I follow up with the deputy ministers of those institutions, and then the assistant commissioner follows through with the assistant deputy minister to make sure the complaints actually go through.

I will have to see whether I will do other report cards. At this point I have four ongoing systemic investigations, and I want to complete those before I start report cards. We're just too strapped to do all of that.

I'm hoping that between the detailed statistics, the follow-up in the annual reports, and the ad hoc interaction with the institutions, we'll be able to follow their performance. I'm waiting to see how that's going to unfold. It depends how this year and the next year goes, in terms of the institutions.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answers.

It is now Mr. Godin's turn.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Thank you, Mr. Chair.

Ms. Legault, welcome to the committee.

Earlier, you said something that bothered me a bit. It had to do with your responsibilities as commissioner, especially with a government that was elected on the promise of transparency. It seems to me that things should be going better than what we are seeing now. When the rate drops by 10%, it's vital to examine what's happening.

You mentioned earlier that you meet with your colleagues on Friday morning and you go through your files. You said that was something you shouldn't do. I'd like you to explain that practice because it bothers me. I would think the commissioner has more important things to do. The next thing we know you'll be doing the janitor's job.

[Suzanne Legault]

This is a personal management style. I am sure that every commissioner has their own management style. On a daily basis, there are 2,000 active files at the Office of the Information Commissioner of Canada. There are 2,000 files in the inventory. I have an excellent memory, so when we receive new files, I have a good idea of what kind of work I need to do. That is very personal. I probably shouldn't be doing that, and leadership experts would probably say that I micromanage too much. That's why I said this. It could be seen as self-criticism. That approach has been working very well for me, and I am very comfortable with it.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

So you are not doing other people's work, but rather looking at the work that has to be done.