With that, I think we can start with our regular business.
Good afternoon. Thank you for asking me to appear today. I am here with Layla Michaud, Chief Financial Officer and Director General of the Corporate Services Branch.
Mr. Chair, I would like to tell you briefly about the work my office has been doing to support transparency and accountability during my term as information commissioner. I am doubtful, however, that I can sustain this important contribution to Canadian democracy given the volume of work and the financial situation the office is currently facing.
As you know, the Access to Information Act establishes the Office of the Information Commissioner of Canada as the first level of independent review of government decisions about releasing information under the act. Requesters who are not satisfied with how institutions handled their access request have the right to complain to my office. And in turn, I have a legal obligation to investigate all complaints that fall under the act. The information commissioner has no discretion when it comes to investigations. The office must investigate all complaints.
Because of the work of my office, Canadians often receive more information than institutions were originally willing to release. I also help requesters get information more quickly. After the Lac-Mégantic tragedy, for example, I was able to secure much earlier releases of information than Transport Canada had originally proposed.
Since 2009-10, I have looked at all my investigative and business processes to identify efficiencies. I significantly improved how my team handles complaints. As a result, we have closed more than 10,000 complaints since I have become commissioner. This is the volume of work that rests with the OIC. Most of these complaints were resolved without the need to resort to the Federal Court, which is the second level of review under the act. For the remaining unresolved cases, my legal team has litigated these matters before the courts with the consent of complainants.
Over the years, I have also made recommendations to the on various ways to advance accountability and transparency. I am very pleased that most of these recommendations over the years have been implemented by the government.
Through the last four years, I also found better ways to carry out crucial financial and governance functions. I did internal reallocations to provide maximum support to investigations.
I have been able to achieve these accomplishments as my budget was decreasing. The reality now is that I have 11% less money to do the work than I did when I started. Then, last fiscal year, we faced a 30% increase in the number of complaints, which has brought the organization to a crisis point. Despite our closing 10% more files again last year than in the previous year, the inventory of complaints grew by 16%. That was the first such increase since I have been commissioner or interim commissioner for the last five years.
In addition to having an investigative team stretched to the limit, I have no financial flexibility to augment my investigative capacity, or to set aside for contingencies. My budget is so tight that last year I lapsed $37,000 at the end of the year. Therefore, I have no money to respond to unforeseen circumstances. For instance, if one of the servers breaks down at the OIC, I will not be able to replace it. There is not enough money.
This is the situation that we are facing now. Obviously, I will have to take action.
The situation will simply get worse, Mr. Chair, since both the number of complaints and the financial pressures will continue to grow.
Unless my budget is increased, I have only one option going into the next fiscal year to keep within my appropriations: to cut the program.
This is not a decision I take lightly. My independent oversight role is crucial to the access to information system, which is itself the foundation of transparency and accountability.
The government has identified these as priorities. The work I and my office do is crucial to its being able to meet them.
But as the workload grows, the gap between when I receive files in the office and when they can be assigned to investigators is increasing. The resulting delays are already jeopardizing the right to access. Requesters will have to wait even longer to get information. This, in turn, will delay their rights to pursue their matters through the Federal Court, if they wish to do so, since they must wait until the investigation of the OIC is completed before exercising their right to go to court.
For instance, Mr. Chairman, at this time the delay between receiving a file and assigning a file varies between six and seven months, so this will increase even more. Such developments are the last thing I want to see for Canadians, who have a right to timely access to government information. I have raised the red flag about this financial situation at every available opportunity. I have also pursued every option available to me to preserve my budget and ensure the integrity of the program. This includes making requests for funding through the 2014, and most recently, the 2015 budget process, so far without success.
In conclusion, let me say that I believe our actions at the OIC during my time as commissioner clearly demonstrate what I have always believed, that effective management of public funds is of paramount importance. I have told committee members in the past that I would have very difficult decisions to make to keep within appropriations, deliver on my mandate, and maintain excellence in governance. I have certainly had to make these decisions.
As I said in my last departmental performance report, which was recently tabled in Parliament, without additional funding, I will no longer be able to carry out my mandate responsibly and ensure the full respect of Canadian' rights to access to information.
If no resources are forthcoming, as a responsible steward of public funds, I will need to make cuts to the program to ensure my office continues to operate with the appropriations granted.
Rest assured: I will back away from the fiscal cliff rather than go over the edge. But, as I do, Canadians' quasi-constitutional right of access will be increasingly denied.
Mr. Chair, I would be pleased to answer any questions you may have.
Ms. Legault, thank you for taking the time to speak to the committee today.
You described a rather disturbing situation. As commissioner, you serve a vital function, ensuring that Canadians' right of access is duly respected.
You said that your office experienced a 30% jump in complaints in 2013-14 and that your budget is 9% smaller than it was in 2009. I think you said that you now had 11% less money than you did at the beginning of your term, despite a greater number of complaints.
As you pointed out, that is a major problem and you may have to make cuts to the program.
What do we do about it? What will the repercussions on your office be? Will Canadians' right of access be jeopardized as a result?
Yes, absolutely. As I said in my opening statement, this is obviously my problem, as the information commissioner, but it also affects the rights of Canadians. It is not my job or position at stake but, rather, the rights of Canadians.
As a steward of public funds, I have already made cuts throughout the office, given our financial situation. I have already reallocated funding and achieved efficiencies in the area of investigations. Of course, we are committed to continually improving our office's efficiency, but any investigation-related improvements I am now able to make would be what I would call marginal. They would not enable us to process the 2,200 complaints currently in our inventory, in addition to the 1,600 to 2,000 new complaints we receive every year. That is where things stand.
As the person running the organization, I have done everything I can. The situation is now in the hands of parliamentarians and the government. At the end of the day, you are my bosses, and I'm telling you that, no matter what steps I take, the volume of work is so high that we can no longer respond to Canadians' requests.
Tab 2 of the documents I handed out provides a history of the funding requests we have submitted to the government over the past few years.
A few years ago, officers of Parliament were under the authority of the advisory panel on the funding of officers of Parliament. In 2010, we requested emergency funding to address a specific case. The government then implemented cost containment measures.
When the officers of Parliament were asked for recommendations under the deficit reduction action plan, we advised Minister Nicholson that we could not absorb a budget cut. We, nevertheless, saw our funding decrease by 5%. In real terms, that is now equivalent to 6% of our budget. That was a larger reduction than what we had recommended to our minister. As far as I know, we are the only officers of Parliament who experienced that.
Then, last year, we were forced to relocate, and the government made us pay for the move. We made a Treasury Board submission outlining our financial situation, and we pointed out that we could not afford to pay for the office's move. So Treasury Board recommended that we finance the relocation with a loan, repayable over 15 years. Repayment of that loan further reduces our budget by 2%.
For the past two years, we have submitted our budget requests to the Minister of Justice, who is responsible for our office, in order to receive funding under the federal budget and be able to make a submission to Treasury Board. My colleague spoke with the people at the Treasury Board Secretariat to find out what funding mechanism we could use to make a request, as an officer of Parliament. I believe Ms. Michaud was even in contact with them this week, via email.
We were prepared to make a submission to Treasury Board but were told to direct our request to the and to go through the estimates process. That is what we did. If the government tells us it will consider a Treasury Board submission, obviously, we will make one. It's ready to go, in fact.
I'm going to continue along the line that I was on, Ms. Legault, because I do find it interesting to review this from my first round. Of the 55,000 requests of all departments—I know they're going up and then what trickles up to you in terms of complaints goes up accordingly—29,300 were commercial in origin, or media/business, and that represents about 53% of overall requests.
If you look at the pure costs to government.... I don't think anyone here disputes the need for this process, certainly, and we appreciate the work done by your office to increase your closure rate. But it was a $995 cost in 1983, and a $1,295 cost in 2012, representing a cost of $71 million to government. This is an important cost, but I think funding could be found for not just your office but for getting rid of this backlog. I notice that your graph at tab 3 has you projecting this 30% rate to essentially continue until 2018, so we're going to be essentially in hundreds of millions of dollars of cost and we're still charging the five dollars that was the 1983 price. Even the Bank of Canada's own inflation calculator says that should now be a $10 and $65 charge.
Here's where I'm going. Would it not be smart for Canada to follow some other jurisdictions that have bifurcated this into a low-cost ATI option for citizens and a somewhat higher one, not full cost recovery, not $1,295...? But for a telecommunications company preparing for the CRTC, at a five-dollar rate they can throw out as many ATI requests as possible—and I've seen this—whether or not some of them are even germane to their filing, because there's such an inconsequential cost for business, yet government absorbs all the work.
Would you be in favour of a two-tier process whereby we keep the price low, maybe the $10 and $65, and gear the citizen request to inflation but have a significant, higher fee for commercial requests?
Yes. The theory is that enhancing the application of open government principles and increasing proactive disclosures will lead to fewer access to information requests and complaints. That is why, in Tab 5, I outlined the types of data requested within the open government context, on the one hand, and the types of data sought through ATI requests, on the other hand.
For instance, there are 200,000 pieces of geospatial data, as shown on page 1. We also have what are called open data. The last page shows the type of data people ask for through ATI requests. As you can see, the subject of the requests varies. As for whether the number of certain ATI requests will decrease as a result of data being made accessible, the answer is probably yes. In the 1990s and 2000s, numerous proactive disclosures were made with regard to travel, especially travel expenses. Then, people requested the supporting documents for the information that had been made public.
The open government initiative has been in effect for two years now. And yet we are seeing quite an increase in the number of requests and complaints. At the moment, then, the trend is not towards fewer requests but, rather, more. We'll have to see.
The early intake unit works really well. Tab 3 looks at the progression of the inventory. When I first became interim Information Commissioner, I walked into an office that had 2,500 cases in its inventory, and every year we've managed to come down with that inventory. We had a decrease in the inventory. That means we closed more than we received every year except for the past year where we had the 30% jump.
So as far as I'm concerned, we have gained efficiencies all the time and we were making really good progress in terms of diminishing the inventory, and the intake is a really good success. We've just now added a mediation component to it, and that is generating some good results as well. What we're trying to do there is really trying to see, with the complainant in the institution right away when the complaint comes in, whether they're really getting what they're really looking for and whether they can circumscribe their request, their complaint, and whether we can resolve the matter more quickly with the institution, and that's working really well too.
So the intake works very well, but at this point in terms of efficiencies, we just did a whole mapping exercise. We're constantly looking to make things better, but the efficiencies I can gain now are marginal. I'm not going to close 2,000 complaints more. I may close 100 more. I may close 30 more, but I'm not going to be able to close the 2,200 that have accumulated again.
Thank you very much, Mr. Chair.
It's been a very interesting process for me, particularly, as I said at the beginning, because I did see, when I was working in law in Toronto, the commercial value of information.
I have a few questions following something you said to my colleague, Ms. Crockatt. You suggested, to the best of your knowledge—because you weren't commissioner in 1983—that the five-dollar fee was not really a cost recovery but was more of a nuisance barrier in that anybody applying has to actually think about it. Is that an approach other countries use, a bare-bones barrier so that it's just...?
We see people on Twitter tweeting all day, just one click of a mouse button. I think there has to be some sort of reasonable ground between open, accessible government and having, at the click of a mouse, bureaucrats being charged with gaining information with the cost of almost $1,300 inherent in each request. What would you say that nuisance amount should be?
I have to correct you, Madame. There are not 55,000 citizens. There are 55,000 requests, and we've established that almost 30,000 are not citizens; they're corporate entities.
It's good to see my NDP friends here supporting corporate Canada in their access to records. My vision to address what is clearing a rising need and your office's very good handling of it would, I think, fill your coffers. It's a system broken into three parts. One part would be a zero charge for any access by citizens to any document pertaining to them or their life. The second part would be a more nominal charge of $25 or $30 for citizens' requests for items not pertaining to their direct life. If they're interested in fisheries and they want to see that, then they should have that access. It would still be a nominal charge, but it would be certainly a lot more than the 1983 amount of five dollars.
The third threshold would be for commercial entities that are clearly potentially commercializing the information. A five-dollar nuisance threshold to billion-dollar companies, I would say, is not a nuisance threshold. It's not even tokenism. A $200 charge to a telecommunications giant or an oil company, I think, is reasonable for a corporate entity.
The reason I'm pursuing this line of questioning is that I think it would result in what you'd like to see: more money, particularly if you were able to earmark some of that to your department, which I think we all agree is doing a good job.
What do you think of my three levels? I know you don't support them, but do any other countries use that? I know that the U.K. actually assessed how much time it would take to gather the information, charged on a fee threshold, and then charged a communication fee for the phone calls and stuff. Do other countries do it this way?
My only program is the investigations program.
I will not be able to function without additional resources, as I have only $37,000 remaining in my budget. If a server goes down, for instance, I will have to close up shop, and that isn't a solution.
I need a contingency fund of about $400,000 to $500,000, which would cover 7 or 8 investigator positions. I would not have to lay off any staff since a number of employees are going on maternity leave or retiring. I just won't replace them, but that will have an impact, as the chart shows.
I think that would be catastrophic. I can no longer ask my employees to stretch themselves even thinner. That is what I have done for years, and they are now stretched to the limit. We will continue to do our job under these conditions, but it will mean more and more delays. If delays are too long, it means the investigative process is no longer valid, in which case, I would no longer be delivering on my mandate.
Okay, I just want to shift you a little bit in the comfortable pew here just for a moment. You said that if a server breaks then you will have to close the shop. These sound like very dramatic decisions that you are thinking you are going to need to potentially take. In another instance you said, “Unless my budget is increased, I have only one option going into the next fiscal year to keep within my appropriations: to cut the program”.
I just want to challenge you that maybe we have the solution here in plain sight, which we haven't perhaps included, and that's why I'm asking you to look at the other side of the equation. We all know that every department would like a lot of increases in funding and that it's always a balance in government between how much you can tax taxpayers and then you dole it out among health care transfers, old age security, and environmental protection. It isn't an unlimited pit and we have to make our case, and make our case strongly, and then provide some kind of a balance.
It does look to me like you have a garden growing outside your window right now and a lot of people, particularly in business, as you've testified before us today, are anxious to receive the information you have and right now are paying five dollars, and they are multimillion-dollar businesses, which, in every other facet of the world, including the world I came from in newspapers, they are paying for information, and a great deal, and as you've said, that five dollars, however you look at it, is a very small sum.
I'm wondering if I might encourage you to just look at that as a possible answer to your questions rather than this very difficult process of trying to think about this passion that you love, being the Information Commissioner, and wanting to make this information available and looking at having to make cuts. You can look at cuts, or you can grow your pie.
I would move a friendly amendment to the motion, because I think Mr. Ravignat's motion is premature. I say that because Madame Legault has already undertaken to provide this committee with a fairly helpful and substantive overview of similar jurisdictions, and the cost structures of ATI requests in similar jurisdictions. I think all members of this committee today have probably found some of the information provided in the materials, the charts, and her testimony before this committee to be very interesting and compelling. Certainly there's a shared optimism that she's been able to get closure rates down. She's been handling the 30% increase, but we do see the 30% increase by departments, and for some of the commercial departments it's far higher than that, and for the security departments it's far higher than that.
I think to really see how this system could work best and whether the five-dollar level from 1983 is the appropriate barrier to what was described as the frivolous or nuisance requests that are potentially bogging down the system and adding to costs, I think the overview that Madame Legault will be undertaking for the committee, comparing our system and processing fees, and showing the charges and those sorts of things, is an important piece of information that, I think, all members would want to have.
My friendly amendment would be to defer Mr. Ravignat's motion until after the undertaking from Madame Legault to this committee is fulfilled and committee members have had time to review it. His motion would become live at that time.
It's a friendly amendment.