JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 16, 1999

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[English]

The Chair (Mr. Paul DeVillers (Simcoe North, Lib.)): I call this meeting to order.

We have witnesses to hear: Mr. Reid and his company from the Offices of the Information and Privacy Commissioners.

But prior to that, we have one administrative matter to handle. When I was elected the chair a short time ago, I indicated to the committee that a caucus matter was pending, and that depending on the result of that, I might have to resign. Fortunately or unfortunately, I was successful in the caucus election, so I am in the position, with mixed emotions, of having to resign from the chair of the Standing Committee on Justice and Human Rights. So I would ask the clerk to take the chair for the purpose of electing a new chair.

[Translation]

Thank you for your cooperation over the two weeks I have been chairing this committee meetings. I now have to resign. Thank you very much.

The Clerk: Thank you, Mr. DeVillers.

[English]

Honourable members, I see a quorum. It is now your duty to proceed to the election of a chair. I am ready to receive motions to that effect.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I would like to nominate John McKay for the chair.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I love John, but I would like to nominate Andy Scott.

The Clerk: Well, I have a motion on the floor, and the committee will have to deal with this motion.

(Motion negatived)

The Clerk: Mr. Alcock.

Mr. Reg Alcock (Winnipeg South, Lib.): I'd like to nominate Andy Scott as chair.

(Motion agreed to)

The Clerk: Mr. Scott, I invite you to take the chair.

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Thank you very much. I'm sure the former chair will live in infamy as the most uncontroversial chair the justice committee has ever had.

Without taking up any more of the presenters' time, I call on Mr. Reid to make his presentation.

I don't recall the timelines this committee uses, Mr. Clerk.

The Clerk: Usually we invite the witnesses to make an opening statement of approximately 10 minutes.

The Chair: Mr. Reid, it is the custom of this committee that your statement might be in the vicinity of 10 minutes, and then we'll go around with questions. And if you would, please introduce your colleagues.

Hon. John M. Reid (Information Commissioner of Canada): Yes, Mr. Chairman, I'd like to introduce the colleagues who are with me at the table. Mr. Alan Leadbeater is the deputy commissioner, Mr. Dan Dupuis is the director of operations, and Daniel Brunet is the general counsel to the Information Commissioner.

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I have a short statement I would like to read, but first I would like to thank the committee for hearing us. This is the first time in the 16-year life of the Access to Information Act that the Information Commissioner has been invited to appear before this committee to present his annual report. In the past, commissioners have appeared before the committee during consideration of the estimates of the Justice portfolio. The meeting today is long overdue, and I hope it will be the beginning of a long tradition.

When Parliament passed the Access to Information Act in 1983, it gave itself an ongoing role in monitoring the effectiveness of the law. The act requires Parliament to designate a committee to review on a permanent basis the administration of the act. That is this committee.

The annual reports of the Information Commissioner stand permanently referred to this committee to assist it in keeping the Access to Information Act under review. As well, all special reports to Parliament that the Information Commissioner may make from time to time are permanently referred to this committee. In the past year I've tabled six special reports, about which I'll speak later.

The former commissioner, John Grace, observed that his annual reports received such scant attention by this committee that they might as well have been sent by rocket to the moon. Yes, I am indulging in some polite scolding of this honourable committee, because the historical lack of interest shown by the committee in fulfilling its legal responsibilities towards the access law has diminished not only its moral authority to criticize government departments for failing in theirs, but also Parliament's, since the committee has the responsibility to monitor the activities of the Information Commissioner and the act on behalf of Parliament.

Let there be no doubt on this point. As a former parliamentarian, I can tell you the health of the Access to Information Act will depend and does depend on the role parliamentarians play. As an officer of Parliament, I have the duty to tell you this committee has not been doing its job, because if the justice committee does not have the will or the time to fulfil its statutory obligations under the Access to Information Act, then some other means must be found to enable parliamentarians to ensure the federal government is in fact an open government.

What is it I'm asking of this committee? I urge that the committee dedicate a day or two every fall to do as we are doing today and review the health of the access system. You should hear from the Information Commissioner to review the issues and concerns set out in the annual report.

As well, the committee should hear from the Minister of Justice and the President of the Treasury Board, because together they represent the central agency leadership over the system. They bear legal responsibility for ensuring Canadians receive the rights Parliament gave them in the Access to Information Act.

A culture of secrecy can only thrive in a bureaucracy when it is tolerated from the top.

You should also hear from the ministers and the deputy ministers of those departments whose performance under the act is substandard, to find out what remedial actions they are taking.

In the last year, in my annual report I have identified shortcomings in the leadership provided by the President of the Treasury Board, who is the minister designated under the Access to Information Act to be responsible for its good administration. It is not too late this year, I hope, for the committee to call upon her and her deputy minister to explain how they intend to discharge their obligations in an improved manner.

Also, the Minister of Justice has the responsibility to keep the law up to date with the continuing challenges of the information age. In 1986 this committee conducted an in-depth review of the Access to Information Act and recommended changes to improve it. Successive Ministers of Justice promised to reform the act, but none delivered. Instead the pressure for reform of the law is coming from private members of the House of Commons who have tabled bills seeking to strengthen the access law.

Colleen Beaumier's private member's bill passed unanimously in March of this year, making it an offence for anyone to destroy, mutilate, alter, falsify, or conceal a record or to direct, propose, or counsel any such act with the intent to deny a right of access. And John Bryden's bill, which constitutes a comprehensive reform of the act, will likely come before a parliamentary committee this year or early next year.

So the question is, where does the minister stand on reform of the act? The minister should be coming before this committee to discuss these issues now, before it becomes a fait accompli.

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May I open a parenthesis here to alert the committee to my concern about the unfortunate organizational relationship my office finds itself in with the Department of Justice. Because my office falls into the portfolio of the Minister of Justice, there is a situation of actual and potential and apparent conflict of interest.

The Minister of Justice is my adversary in all litigation that we undertake or that they undertake on behalf of departments against us. Of course, the minister is the legal adviser to all departments against whom complaints to my offices are made as well. This is not the kind of relationship where the minister should have, as she now does, advanced knowledge and control over submissions I may make to Treasury Board for resources to carry out my duties. The mere appearance of the possibility that the Minister of Justice could hold the resources of my office to ransom is simply untenable with the concept of the independence of the Office of the Information Commissioner.

Consequently, I have urged, from the beginning, the government to move my office out of the justice portfolio and into a much more comfortable home, such as that of the deputy prime minister, the government House leader, the President of the Treasury Board, etc. My proposal, I hope, is currently under consideration, and I would ask this committee to lend support to it.

I mentioned earlier that in March of this year I tabled special reports to Parliament, which stand referred to this committee, on the performance of six departments. I developed these reports in response to the forceful demands the members of the natural resources and government operations committee made to me when I appeared before them to be interviewed for this position. They made it clear to me that they wanted a tool that would allow them to hold government departments up to scrutiny and that would give them the ability to be able to call for the appropriate changes.

In these reports, or departmental report cards, six departments received failing grades. They are the Privy Council, National Defence, Health Canada, Foreign Affairs and International Trade, Citizenship and Immigration, and Revenue Canada. These departments have been on this failure list for a long time, and they have a record of denying Canadians the right of access by delaying access beyond acceptable limits.

These report cards expose the unfortunate reality of open government in Canada. It has been seriously weakened by the tactic of delay. Previous information commissioners have been alerting Parliament to this appalling situation every year since the act came into force. I have given this committee clear evidence, with all of the data you could wish, and you now have the opportunity to hold the culprits to account.

As I noted before, I took this step at the express request of the members of the natural resources and government operations committee of this House, who interviewed me at the time of my nomination.

As your parliamentary officer, I urge you to make the time this year to call the heads of these departments before you. I have reason to believe that some will have constructive reports for you, and we should hear the good as well as the bad. My office can identify where there are problems in the system, but it's only Parliament, acting through its designated agent, this committee, that has the power to hold department and government to account and to provide the incentives necessary for the emergence of a vibrant culture of openness.

Those who have read my 1998-99 annual report will see that I am an equal opportunity critic. All those having statutory responsibility for making this law work, including this committee, received what I hope was a constructive scolding. In a way, by turning the light of scrutiny on the leaders of the system, I'm admitting the shortcomings of my own office as well. The Information Commissioner alone cannot ensure that Canadians receive the rights that Parliament set out in the Access to Information Act. All the leaders in the system—the Prime Minister, ministers, deputy ministers, the Information Commissioner, the courts, Parliament, and this committee—have a vital role to play in nurturing open government. Without constant vigilance, bureaucratic cultures gravitate naturally towards secrecy.

Before I end my sermon, I want to speak about one other matter requiring special vigilance, and that is proposals for reform to the Access to Information Act. This is a project that I hold dear.

In 1985, preparations began for the statutory review by the justice committee of the privacy and access acts' first three years of life. Since the committee's report, Open and Shut, in 1986 there have been continuous calls for reform. As I mentioned previously, John Bryden's bill is soon to come before a parliamentary committee, and perhaps the government may respond with its own bill.

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I understand, as much as you do, that politics is the art of the possible, that reform of the access law is a very difficult project. It must compete for space with other good causes on the parliamentary agenda. And it's unlikely that the wish list of the Information Commissioner will be the same as a minister's wish or a bureaucrat's wish or the wish lists of private members or various types of users of the system. All have very different perspectives.

I have urged from the beginning that the government bring the reform exercise out of the back rooms. Ideally, in my view, the development of a package of reform proposals should be the responsibility of a parliamentary committee. In that way, proposals for reform can be judged by proper public debate, instead of the proposals coming out of the back rooms, including my back room. With all due respect, as lawyers say, I must tell you of my worry that reform of the access law born of the present insider process and confined to that process may not result in a strengthened right to know for Canadian citizens.

One of the things that has amused me since I became Information Commissioner has been the profound change in attitude about access to information that occurs with highly placed insiders when they become highly placed outsiders, when they retire and lose contact with all of the flow of inside information. When they find themselves on the outside, they begin to understand the virtues of the access to information law because they can't get what they used to get. They have to use the access to information law to get what they would like to have, and they now begin to see the differences in perspective that came when they were a deputy minister or a minister, or what have you, and when they are “ex”. When they are “ex”, they are citizens like all of us and they have to use the access act. They become very strong supporters of the access act. It's a change of perspective.

My point is simply to make a plea to find some way to make this reform process into one that includes a multitude of perspectives, because we have to satisfy the population and we have to make sure that what we come up with is going to be better than what we have. From my discussions I've learned that there is within the system a nostalgia for the days when the Access to Information Act wasn't there, when secrecy could manage information. And we still see signs of that even today. Within the federal bureaucracy there is a wind of hostility that blows against access. There is disfavour born of indignation against perceived waste in times of thrift, of valuable resources in responding to access requests. Special hostility is reserved for those who make multiple requests and for those who use the information acquired for commercial gain. There are even rumours that access requesters have the avowed purpose of bringing departments to their knees through abusive, frivolous, or vexatious use of the access law. And there's a widespread belief that the costs of administering the access law are excessive, out of control, and users don't pay their fair share of costs.

Such a hostile spirit should not be the spirit in which the project of proposing reforms to the access law should be tackled. It is an ill-considered and ill-informed spirit; it is, I am afraid, self-interest cloaked in the rhetoric of fiscal responsibility. Beware of reform proposals that come clothed in this garb.

And here I make my second plea. It's much better to do nothing than to embark on reforms designed to achieve no more than imposing higher fees on users, giving longer response times to government, subjecting some requesters, perceived as abusive, to penalty, and offering more opportunity to insulate records from the right of access. We should be doing the opposite.

The access law in Canada is a remarkable accomplishment. There are only 12 countries in the world, though the list is growing slowly, that have subjected their governments and bureaucracies to this kind of transparency. Yet the benefits of the law are tangible and profound. I believe it is transforming the way in which public business is done. There may well be less candour and fewer records being created, but there's also greater care, frugality, integrity, and honesty in government as a result of this law. For a few, the motivation may be simple fear at being found out. For most the motives for ethical behaviour are bred in the bone. We have a remarkably clean, ethical public service in Canada. No matter what the motives, the end result has been positive in quite a revolutionary sense.

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Can we afford to be cautious and slow in adopting reforms to the access law? We can't afford to. We have to keep it up.

Thank you, Mr. Chairman.

The Chair: Thank you very much, Mr. Reid.

I understand that a motion was passed when the committee was first struck that we would have seven-minute rounds, so we'll turn to Mr. Cadman for the first seven minutes.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair.

Thank you, Commissioner, and your colleagues, for coming today.

Actually, you answered most of my questions in your presentation.

There's just one that remains. On page 9 of your report it says:

No minister of Justice has issued a reminder to officials that the response times are mandatory and that consistent failure to comply constitutes lawbreaking which will not be tolerated. Rather, Justice has fought efforts by the commissioner to enforce response times and Justice has argued before the courts that there should be no legal consequences for government institutions when response deadlines are ignored.

I just wonder if you'd care to elaborate on that and how we could go about remedying that.

Mr. John Reid: One of the problems with the act is that it says documents are to be produced for requesters within 30 days, and that's an absolute. There are certain occasions on which extensions of time can be put.

But there is no penalty. The courts have no penalty they can impose on this. When we have gone to court, we have suggested that the penalty that should be applied in these delay cases should be that, of the records that are discretionary as to whether or not they can be released, some of these records should be released in addition to the normal package. We've only gone to court in a number of these cases where there has been a constant flow of delays within a government department. So that's what we're talking about. What we're talking about here is legal obligation without a penalty clause.

When I became the Information Commissioner, the workload of the office was about 42.5% based on delays. That has now risen to 50%, so the problem has been growing. Treasury Board has told us, however, in defence of the government, that the number of applications coming into the system has grown at a rate of about 17% in the last year. However, our figures show that the number of complaints coming into my office has risen by about 19%. These delay complaints should be going down, and the major focus of my first year in office has been the issue of delay.

That's what that section you quoted is all about.

Mr. Chuck Cadman: So really what you're suggesting is that there should be some teeth in that by having penalties attached.

Mr. John Reid: Yes.

Mr. Chuck Cadman: Thank you.

Thank you, Mr. Chair.

The Chair: Thank you very much, Mr. Cadman.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): It's mostly comments that I want to make. I read a large part of your report, and I must congratulate you because I find it quite good. You are raising questions to which you are giving answers as well, particularly by proposing changes to the law. If this committee and the government would listen attentively to what you say, there is no doubt we could bring extremely important changes to the law, which would be in line with your wishes.

I also think that, to prevent any possibility of actual or apparent conflict of interest, the portfolio of your office should be transferred from the Department of Justice to another department. I believe that it would be a good thing to start with. Indeed, I recall having often asked the Department of Justice questions on such matters. The first reaction of the Minister has always been to defend the existing system rather than listen in order to know if changes should be brought to that system.

It might explain why the Committee on Justice has spent several years—you talked about 16 years, and as for me, I'm here since 1993—without actually considering seriously the perspective of bringing changes to the law in the direction you are proposing.

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At the outset, we don't get much attention from the government. In addition, we know how big a challenge it is to introduce a private member's bill. You already talked about that when you congratulated a government member for having done it.

Some modifications to that private member's bill were brought forward by this committee. I'm one of those who insisted that the bill be amended to make it more coercive. But that is not obvious. If you are to offer us your cooperation, as you seem ready to do, we might have a greater interest in taking a closer look at your proposals to try and determine whether those changes could be useful and which response we should expect from the responsible minister.

So, I don't have any specific question to ask, given that your report is very well done. It's very seldom that I make such an acknowledgment. Furthermore, I'm satisfied with the answers you gave today to some of the questions I was to ask you.

[English]

Mr. John Reid: Mr. Chairman, I would like to say that the committee has already had a crack at the Access to Information Act because of the excellent work it did on Madame Beaumier's bill. I think it's important to recognize that bill is a watershed because it created a criminal offence for civil servants who break that law. I think there's only one other criminal offence that applies to civil servants, and that is if they engage in torture. But this is a significant change, and it is strengthening the Access to Information Act. We're very grateful that was done, particularly the difficult work done by the committee to take Madame Beaumier's bill and strengthen it and make it more powerful and clearer. So that is good.

But I want to talk about the reform of the act, which is very important. I think it's important that we make sure that everybody has an opportunity to participate in this.

What I see happening is that members of Parliament are now using the Access to Information Act as their primary way of obtaining information from the government, and this is a significant change in the way in which members used to get their information. So there is now a constituency within the House of Commons to improve the act and to make sure that information comes out, because it now affects members of Parliament in a way in which it never did before. So I think you want to think about those things as well.

I think the committee wants to think about whether or not it wants to be a direct participant in the reform of the legislation, because it will be a major operation once the proposal comes down. Of course, I'm speaking of the trigger that John Bryden's bill is. If that bill comes through, to what committee will it go? The committee that will receive that bill will have a responsibility to hold a fairly elaborate series of hearings, and the committee might want to think about how it would go about handling that burden in addition to the workload it already has.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. I want to congratulate you on your new position. I look forward to working with you as chair.

Mr. Reid, and your cohorts, we appreciate very much your first appearance here. I'm hoping it won't be your last, even with the constructive scolding you've given us.

In your report you name six departments that received a failing grade.

I want to focus on the central aim of this committee, which is of course Justice and the Solicitor General. Aside from the minister herself having referred to her department as the world's worst law firm, in the short time I've been here I've seen a consistent theme of delay, denial, and a dragging-out of court cases every time a citizen of this country comes into conflict with their government.

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You identify that as well in a different context of disclosure of information. But it worries me greatly that you have raised this concern of your department being under the auspices of the Justice Department, where, in instances where conflict arises, when you may be essentially working with a complainant and the government is responding, your impartiality, perceived or otherwise, can be attacked.

My line of questioning would be, first, are the resources you are currently receiving adequate? I know most times any department is asked that question, they respond no. But I would be interested in the budget you are currently operating with.

How serious is this conflict? Is it more than just perceived? If Canadians are to have faith in you as Information Commissioner and your department, your impartiality and the ability you have to disclose information that you deem appropriate, your ethics, your department's reputation, must be pristine, I would suggest.

Mr. John Reid: We're aware of this, and it's why I am concerned about the situation I face with the Department of Justice as my portal into the government for resources. We have just gone through a rather interesting exercise with Treasury Board that started before I was there and ended just a little while ago in which we went through a very intense investigation of our operations and the use to which we put funds. There was an agreement between us and Treasury Board at the end as to what the increase in resources should be for the office. When the decision was made, it was made on an arbitrary basis and we received half what everybody had agreed we should get.

Now, I'm happy to have half. I'm happy to have more, because as I mentioned in my remarks, my productivity is under pressure because of the increase in the workload I am facing this year as well. In fiscal year 1998-99, we received 1,670 complaints, which was up from 1,405 the year before, a 19% increase. However, our turnaround has improved, because we complete an investigation now in about 3.99 months, and last year it was 4.16 months. So we have squeezed more productivity out of the same staff.

Mr. Peter MacKay: Could I just interrupt you for one second? How do you account for the increase? If your department is being more productive, and one would glean from that that there may be a greater degree of openness or accessibility because of the job you do, why are we getting more inquiries?

Mr. John Reid: I think we're getting inquiries because there has been a significant increase in the delay requirements. In other words, departments are not getting the material out as quickly as possible. It's gone from 42% of my workload 16 months ago to 50% today. The delay factor is increasing.

Secondly, when you get an increase in the total amount going into the system, which Treasury Board says is about 17%, we should expect a proportion of that, and ours has actually worked out at 19%. There has been a spike in the system after a period of time when the system had basically levelled off. We seem to have had a spike in the last year. Now whether that will be maintained or not is not clear, but those are the figures we have at this point.

Mr. Peter MacKay: Thank you. Can I ask one more quick question?

The Ethics Commissioner is a newly created position. You talk about perception, and the reality in politics is that this position is not a watchdog; it's a barking dog that informs government when trouble is coming. Is your department in any way tasked with examining the role of the Ethics Commissioner, in terms of their disclosure of information? There was one recent instance where information was provided about operations in the PMO, and then there were ramifications on the civil servant who had made this disclosure. Has there been any investigation, or have there been any requests made for you to look at the office of the Ethics Commissioner?

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Mr. John Reid: We have had requests to look at documents that have been requested and that are held by the Ethics Commissioner. We have done that work and we have applied the letter of the act. We have had great cooperation with them on that.

We do not have any power to undertake an action until we have a request. There are certain limitations to that. There are things I can do by a self-initiated request, but by and large, we're restricted by the act on that. We would have no ability to investigate anything in the ethics department or any other department of government unless somebody had said they were unable to get their documents from them on time or that they disagreed with the way they have taken information out of the document.

Now, the exclusions and exceptions in the Access to Information Act apply across the government, so that even when the government produces documents on its own, it has to take into account the exclusions and exceptions in the Access to Information and the Privacy acts to ensure those acts are totally respected in the way they release information.

So even if you were to go to the government and say, I would like X, Y, and Z documents, and they said, that's fine, Mr. MacKay, I'm delighted to give them to you, without having to go through an access to information, they would still have to go through them to make sure that all of the exceptions in the act were respected in the documents they gave you. The same applies to the Ethics Commissioner.

The Chair: Thank you very much, Mr. MacKay. We'll have further opportunity.

Now I'll recognize Mr. Alcock, and I also have Mr. McKay on the Liberal side on my list.

Mr. Reg Alcock: I'll try to be expeditious. I have a couple of quick things. The first is to say, Mr. Reid, how delighted I am with both the tone and the substance of your report and your remarks. I can support virtually everything you said.

I recall back in the mid-1970s and into the early 1980s, when access to information was being debated, one of the big questions was where the onus lies. Is the onus on government to share everything and protect only those things that it deems need protection, or is it to protect everything and share only those things it chooses to share? That was a big debate. The decision that was made is reflected in the principles of the bill, which said first that we would share everything and protect things only when there's a reasonable case to protect them.

But a reasonable man, arriving here from another planet, would be hard pressed to say that we live up to the principles of this in the way we manage information in government today. So I am delighted...I've spent time with John and have an understanding of where he's going. I suspect a large number of that increase in requests is generated by John's interest in some aspects of this.

The question I keep bumping up against in this whole business, which is why I'm such a strong supporter of a renewal of the act, is that we're in an age now where electronic commerce, electronic management of information, and that whole interface and flow of information that takes place in government, between government and the private sector, and between governments is developing very rapidly with very little political oversight. It is still being driven largely by a technical community within the departments.

Has your department begun to develop a framework, or begun to think about how you manage, capture, and allow people access to some of that flow of information?

Mr. John Reid: We are beginning to grapple with a lot of the problems as they apply to people's rights to information. Let me give you two examples.

One of the problems we have identified in the governmental structure is that in the age of information, government does not treat its information as an asset. Filing systems are gone. Treasury Board has admitted that at least 25% of the time of any civil servant is spent searching for information that they already have but that nobody files or catalogues. There are no librarians, file clerks, or secretaries. Basically, that's what they did—look after information. So there's been a collapse there.

The second is that there's an awful lot of material that goes out on government web sites, for example, but nobody tracks what's on those web sites. Something may go on for a day and disappear. It may be on for three months and disappear. You may not be able to find it again, because there's no tracking.

Those are just two things. We are aware of these things, and one of the reasons we'd like to see a review of the act is that we'd like to see some focus by members as to what powers should be provided in the act, and those powers should apply to both the offices of the Information Commissioner and the Privacy Commissioner, who has an interest in these things as well.

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Mr. Reg Alcock: Related to that, I did some work with Treasury Board looking at the structure of electronic information in government. One of the problems is the apparent lack of common instruments across departments, which really impedes transparency, because it changes the analytical framework every time you move across departments, which in today's world seems to be rather unnecessary.

It strikes me that with your relationship with Treasury Board and their responsibilities in this area.... I know some of the folks who are working there have a sense of how that might be managed. It deals with more than access to the information; it's the structure of how the information is created and held.

Mr. John Reid: That's correct, and we're very deeply concerned that any proposals that come out of those working groups must take into account the Access to Information Act, because that act is the way in which you categorize all your information. It would make it a lot simpler if governments, when they were creating information, took into account the questions that are raised in both the Privacy Act and the Access to Information Act.

As an independent office, I'm not so certain that even if I were invited I could participate in those kinds of working groups, but I don't know anybody in those working groups who is aware of the Access to Information Act and its relevance to what they are doing.

The Chair: Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Mr. Reid, thank you for this very good report. There are several things that jumped out at me when I was reading the report this morning, but the one that struck me as quite an anomaly is your relationship to the Department of Justice.

On page 9 of your report you talk about the responsibility of the minister to have an overview of the act, advise the President of the Treasury Board, provide legal interpretations, gather case precedent information, and provide coordination, preparation, and government printing of parliamentary reviews, and so on. Then, further on in the paragraph, you indicate that Justice has fought efforts by the commissioner to enforce response time. Justice has argued before the courts that there should be no legal consequences for the government institutions when response deadlines are ignored. On the face of it, that raises questions of almost institutional conflict of interest.

So my first question is, to whom do you report, and should that be changed if in fact this is an area where you are going? Can you give an example to the committee of this apparent conflict of interest, which would give an outline of how egregious this situation might in fact be?

Mr. John Reid: Let me deal with the first part first, which is to whom do I report. As an officer of Parliament, I report directly to the House of Commons, and Parliament has designated this committee as the organization to which I come directly with my reports. So in effect I report to you, and you in effect are my boss and my supervisors.

I report to the Department of Justice whenever I wish to enter the government to seek resources or other matters that have to do with the administration of government. To use the new jargon, my portal into the government is the Department of Justice. So if I wish to go for more resources for my office, I must first of all satisfy the Minister of Justice that this is a reasonable request. I cannot go directly to the Treasury Board for that; I must go through the Minister of Justice. The Minister of Justice can do whatever she chooses with it before it goes on. So I find that to be an extremely difficult situation.

In addition, of course, I always have the normal dealings with the Department of Justice in which people ask for documents and files that they have, and they complain. I have that relationship with them as well. I just feel that this kind of situation is bad.

Mr. John McKay: Is there another example in the relationship of Parliament to any department where the resources are protected?

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I understand the anomaly here. You report to Parliament, and in theory that's an independent reporting function, but you fight for your resources under the umbrella of the Department of Justice. Is that also true for the Privacy Commissioner?

Mr. John Reid: Yes, he has a similar problem.

The Chair: Thank you, Mr. McKay and Mr. Reid.

We'll go back over to Mr. Cadman now for the second round. You have three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I have one quick question. You made a comment earlier about the number of actual members of Parliament using Access to Information. There was a situation a few weeks ago where one of my colleagues in the House rose on a point of privilege because he felt he had been thwarted under Access to Information. Your reply to me earlier was to beef up the system and to put some teeth into the act to provide some penalty. Do you think that would be a solution to that problem?

Mr. John Reid: Yes. His problem was a delay problem, and if you violate the 30 days with or without the extensions, there is no penalty. You can look at it from the point of view of a department: This is a freebie. I don't have to do the extra work or the effort and whatnot to bring it out. There's no penalty.

One of the penalties I was thinking about is that maybe we should do a report card on every department and the bonus of the deputy minister would be based on that. That would certainly be an effective way of forcing departments to pay attention to this sort of thing.

There's the legal possibility of giving powers to the courts so that when certain delays come before it, they could force the release of additional information that the government might not want to see released from the point of view of its own embarrassment, but you would still want to make sure the material that was important to the state was protected.

So there's a variety of ways you could go about putting some teeth into it.

The Chair: Thank you very much, Mr. Cadman.

Ms. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you, Mr. Chair.

I would like to go to the teeth business, in that it does seem that all of those are interesting, but I find it hard to understand why if all fails you have to go to court. What capacity does your office have for mediation or alternative dispute resolution or some of the cheaper ways of going about this, and again, the conflict in terms of the dispute being with the Department of Justice, that it would be Department of Justice lawyers going to court against the Department of Justice?

Mr. John Reid: Against me.

Ms. Carolyn Bennett: Against you. How does all that work?

Mr. John Reid: The answer is that I am an ombudsman-type office, so I have no powers to order. What I can do is make findings, and we make findings such as were quoted earlier and we release that information to the complainant. The complainant then can use that information as he or she sees fit.

So we spend our time in mediation. I would think we look after about 98% of our cases through mediation and maybe 2% end up in court. The ones that end up in court tend to be those issues that revolve around some questions of law. Sometimes we've seen a few that have just been put in for the sheer hell of it, but by and large they are based on questions of law.

But we are in the mediation business, and we spend a fair amount of our training dollar teaching our people the techniques of negotiation and mediation. We have no great desire to be a criminal investigation facility. We have no great desire to change our status to give orders. We think we do a very good job with the resources we have, and we have a good success rate.

Ms. Carolyn Bennett: On Bill C-208, you criticized the Treasury Board interpretation of implementing it. What would be your advice on that?

Mr. John Reid: The recommendation I made was that when a case comes to the attention of the Department of Justice or the Treasury Board or a department, we be informed of it. One of the reasons for that is that we have people out doing investigations all the time, and we want to make sure that when we are carrying out our work we don't end up in a situation where somebody's rights may be tampered with inadvertently. We want to know what is out there.

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Our job is to look for missing records, analyse records, and look after delays, but we have to know where the blockages are in the system.

If you want to come to us and ask us to investigate what may well be a case like this, we would certainly come in, but we would restrict what we were doing to simply what we normally do. If we found a situation where we had some evidence that something might have happened, we would go to the deputy minister, the Attorney General, and say “You should investigate this.” That's all we would tell them.

We have to be very careful to protect the rights of the people involved in this sort of thing. We want to know what is out there, so we can be prepared and protect ourselves, as well as individuals who may be caught up in something like this.

The Chair: Thank you.

I'm will go to Monsieur Bellehumeur, who has another question.

[Translation]

Mr. Michel Bellehumeur: I just have a very short question. You said earlier, rightly I think, that your recommendations involve no obligations. In your opinion, should those recommendations be compelling for the federal institutions?

[English]

Mr. John Reid: That would mean giving the order power. The experience of other jurisdictions where they have order power, as in Quebec and Ontario, is they spend a lot of time in court. About 50% of their orders are challenged. So for the consumer, the person who has asked for the information, this increases the delay, and it becomes a technique for people to delay and deny.

I have the power to make findings. I can give you that information and you can publish that information.

We had a case in the House of Commons where a member of Parliament used the information we had discovered. Others have used that information as well. That's very effective, and that is my power.

I should say that the act gives the Information Commissioner very strong tools to conduct thorough investigations. If I had the order power, you might want to take away some of those powers. So there is a balance in the act, and I think the experience of 16 years indicates that balance, in terms of the Information Commissioner's powers and the ability to publicize what's going on in the annual report and in my special reports, is a very powerful tool. But in the end, it comes back to the willingness of parliamentary committees to take up the torch and force the issue with the government, the departments, and the civil servants.

The Chair: Thank you very much.

Mr. DeVillers.

Mr. Paul DeVillers: Thank you, Mr. Chair.

Mr. Reid, on page 10 of your brief you make reference to the hostile winds that are blowing against frequent requesters in access to information. You comment that there are even rumours that access requesters have the avowed purpose of bringing departments to their knees, through abusive, frivolous, and vexatious access to law.

I have experience in the Ontario municipal Freedom of Information Act, where an individual, who was incarcerated in a maximum security mental health centre in Penetanguishene, became quite infamous or famous in the area as a consultant to people on how to use Access to Information. In that case, it's my opinion that there were frivolous and vexatious requests being made. At the time, I was the solicitor for the town of Penetanguishene. This individual, who was never a resident of the town and just happened to be housed in the provincial institution there, would request things like all of the building permit applications from 1959 to 1980. That struck me as being pretty frivolous and vexatious and a considerable expense to the municipality.

Do I take it from your report that you would be against any kind of reasonable mechanism put in to protect society and the resources of the federal government in responding to that type of obviously frivolous request?

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Mr. John Reid: We have not seen any such requests that would be frivolous and vexatious. Consequently, I'd have no problem if you were to put a clause like that into the act.

There may well be a case that comes up that would result in that, and there should be some protection, but I don't think you should use that as the founding principle on which you reform the act.

Mr. Paul DeVillers: I'm not suggesting that.

Mr. John Reid: But I have no problem—

Mr. Paul DeVillers: I'm a strong proponent of providing some protection there for the obvious cases.

Mr. John Reid: The problem you have to think through is who should make that judgment. Clearly, it can't be the department. Should it be me, as Information Commissioner? Probably not.

Mr. Paul DeVillers: I would suggest Parliament should make it in the drafting.

Mr. John Reid: We have to think about how that will be determined. If there were a proper definition that gave thresholds and whatnot, then that would be the way to go.

Mr. Paul DeVillers: Just from reading your brief, I thought you were sort of against it in any case.

Mr. John Reid: No, this is a combination of arguments we have heard in the system that people wish to push as the guiding principles on how the act should be amended here.

Mr. Alan Leadbeater (Deputy Commissioner, Office of the Information Commissioner of Canada): I guess we feel it should be tackled head-on by putting a provision in the act that says being frivolous and vexatious is a reason not to answer, subject to review. We hear a lot about raising fees for everybody, allowing government departments to take a longer time for everybody, and this kind of thing, to attack a problem we haven't seen at the federal level. This just may be overkill.

Mr. Paul DeVillers: We used to refer to it colloquially as the nutbar clause.

The Chair: Thank you for that enlightened definition.

We will go to Mr. MacKay and then back to Mr. Saada.

Mr. Peter MacKay: I'll make no references to nutbars in my remarks.

Mr. Reid, this report was tabled in June and is really a very comprehensive report. It's very commendable in the number of issues that are raised.

There are two specific cases I was aware of, previous to seeing them appear on the pages of this report. One involves the Solicitor General's department. The other involves a company by the name of Telezone, where there was extensive delay and, I would suggest, an outright effort by the government to avoid disclosure of information.

I can certainly appreciate the sensitivity of matters that are before the courts and the need to protect, in certain instances, documents until the courts have made rulings. But with respect to this matter involving the Solicitor General, there was some very pointed language used here...no stomach.

The previous commissioner, Mr. Grace, referred to unjustified secrecy and foot dragging. At the end of that particular section of this report, under the heading of “Lessons Learned”, and just prior to that, there was the suggestion that the minister was going to respond to some of the specific issues that were raised, coming from these cases. The minister agreed to do so. This case involving the Solicitor General's department went back to 1994. Has the minister responded? Has anything changed in that department, to your knowledge?

Mr. John Reid: Yes. I'll ask Mr. Leadbeater to give you some of the details of that, please.

Mr. Alan Leadbeater: That particular case involved access to inspector general's certificates. This is kind of timely at the moment because the inspector general is doing another review of CSIS in this latest issue.

As a result of that case, they have put in place a specific protocol for handling access requests for these certificates, which will ensure they get answered within 30 days. In fact, some of them may even be put out before a request comes into force. Both the minister and the deputy solicitor general have been involved in this and have given us assurances that this won't happen again.

Mr. Peter MacKay: Your office also shares premises with the Privacy Commissioner, and I'm wondering if that poses any concern to you.

Further to that is the issue of teeth or enforcement, which I think is a major problem. It's fine to have a process that says “We're identifying a problem; here's who is responsible; this is what should happen”. It's like a finding of guilt in which everybody walks away because they just forget about the sentencing process.

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I think your suggestion that perhaps salary or bonuses should be tied to deputy ministers is a very unique one. What about recommendations for suspension that would be empowered to you when you ran up against that in any government department?

Mr. John Reid: The problem with giving the Information Commissioner power to do things means the exercising of the power becomes subject to a court challenge. If you were going to do something like that, you would end in court anyway.

Mr. Peter MacKay: Well, the federal government is not afraid to go to court. We know that.

Mr. John Reid: That's true, so we're probably better off going to court and having it make the adjudication rather than having me do it, because that would then begin to change dramatically the nature of the office. We would have to become a much more formal organization, and it would cut down a certain amount of the things we now do. That's how I would prefer to see it.

On the other question, you'd better repeat it. I've forgotten what it is.

Mr. Peter MacKay: It was with respect to the Privacy Commissioner, where you actually share physical premises.

Mr. John Reid: Yes, we share physical premises. But what's important is not that we share physical premises, it's that we share the administration and corporate affairs. They serve both of us because we are one vote. The Privacy Commissioner has taken the view that we should be split off so that each side has its own vote, and each should therefore have its own corporate affairs structure.

Sometimes I find the situation quite awkward, but from the point of view of cost savings, I would want to be assured that if we ever split off, additional funds coming into the system would not come out of my investigators or out of the work that I do.

Mr. Peter MacKay: How many investigators do you have?

Mr. John Reid: We have 19 at the present time. We do have additional funds to hire more, but we are so cramped for space that we can't hire them until we have new facilities. We will be moving within the building we are in now, and that will allow us to hire the additional investigators at that point.

We have that because we have a very high security quotient, because the documents we have in the office are not ours. They belong to the government. These are documents in dispute, so our security has to be very high.

Mr. Peter MacKay: Do you let them take them out of the office to go to hockey games?

Some hon. members: Oh, oh!

Mr. John Reid: No.

Mr. Peter MacKay: They don't go?

What is the average caseload per investigator?

Mr. John Reid: Dan, perhaps you could answer that?

Mr. Dan Dupuis (Director General, Investigations and Reviews, Office of the Information Commissioner of Canada): We expect investigators to handle between 20 to 25, but beyond that they become ineffective.

Mr. Peter MacKay: So with 19 investigators and, did I hear you correctly, over 1,600 complaints—

Mr. Dan Dupuis: Yes.

Mr. Peter MacKay: —the average has to be fairly high.

Mr. Dan Dupuis: We are behind the eight ball. Right now, investigators are carrying a workload of about 30% more than what they should be carrying to be effective.

Mr. Peter MacKay: That's 30% over the 100% workload.

Mr. Dan Dupuis: Yes.

The Chair: Thank you very much, Mr. Mackay.

Mr. Saada.

[Translation]

Mr. Jacques Saada: Thank you for your report. I have a very brief question. Did I understand correctly that you report to the House of Commons for your operations, but, on the other hand, to the Department of Justice for your funding? I can perfectly see what role the Department of Justice may be brought to play concerning cases under dispute.

Mr. John Reid: No, that's...

[English]

the Treasury Board.

[Translation]

Mr. Jacques Saada: Then, I did not understand your allegation to a potential conflict of interest. Once you explained what you mean by that, I would like to know if, during those 16 years since the commission was created, there were actual cases where that threat of conflict of interest has materialized.

[English]

Mr. John Reid: In terms of the way I can approach Treasury Board, which handles the money, I must go to the Minister of Justice. The Minister of Justice then has the ability to review, hold up, or negotiate changes that she may feel are necessary. Only after she is satisfied does it go to the Treasury Board for discussion, debate, and a response.

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As an officer of Parliament, I don't think I should have to go through that kind of scrutiny from somebody I am facing in court every day. That's my concern.

Mr. Jacques Saada: I fully understand that. I'm not saying I'm in disagreement with you. I understand.

My question was more along the lines of were you or your predecessor aware of any decisions made in this process by Justice that were harmful to the operation you had responsibility for before going to Treasury Board? In other words, did Justice make some decisions in this process that you find have been harmful to the commission?

Mr. Alan Leadbeater: Would you like me to answer?

Mr. John Reid: Yes.

Mr. Alan Leadbeater: In this particular year we had a specific instance. We had been working with an outside consultant and Treasury Board to assess our resource needs, and we had developed a submission for Treasury Board that required approval by the minister. The minister held that up for four months. The minister asked for some changes we could not agree with. The Information Commissioner brought his concerns to the attention of the minister and other senior officials in government. The process did not result in the end in having a change forced on the commissioner that he wasn't in agreement with, but it was a situation where an effort had been made to cause a change in a submission.

I'll give you an example of the kinds of situations we may face on a daily basis. We may be involved in a court case against a government institution that is represented by the Attorney General. We may feel we need experts and outside counsel to help us with our court case and the resources to hire those. To us it seems awkward and impossible to have to disclose our strategic hand to the minister when the minister is the adversary in court. So those kinds of things sometimes dictate our strategy. We simply don't go and ask for the funds to get those experts because we'd be disclosing our hand.

Mr. Jacques Saada: If I can continue for a second,

[Translation]

since the creation of the commission—I fully understand what you are saying, because it's very logical, it's just common sense—, were there any recommendations made by the commission to settle that problem of a department being both judge and judged? If yes, when? Have you ever taken personally any initiatives along that line?

[English]

Mr. John Reid: From the beginning I have spoken to the government about this. In particular, I had a long meeting with the Deputy Prime Minister, Mr. Gray—

[Translation]

Mr. Jacques Saada: Forgive me for interrupting you. I am not referring to your current mandate, but to the 16 years since the commission was created. I apologize for interrupting you , but I understood quite well your position.

[English]

Mr. John Reid: No, I'm just talking about what I have done in the time.

Mr. Alan Leadbeater: I'd have to verify that and get back to you. I can't say off the top of my head whether or not there was a specific recommendation on that arrangement. I know the concerns have been expressed over the years, but as to whether or not there was a specific recommendation, I would have to check, sir, and get back to you.

Mr. Jacques Saada: Fair enough. Thank you.

Mr. John Reid: I not only had a meeting with the Deputy Prime Minister, but I have also discussed this issue with the House leader.

The Chair: Could I suggest that we could get a response in writing to Mr. Saada's question, and it will be a matter of—

Mr. John Reid: Yes, we will do that.

The Chair: I'll now go to Mr. MacKay, and then back to Mr. Grose.

Mr. Peter MacKay: I'm very glad my friend asked that question. Could you tell us when those meetings took place with the Deputy Prime Minister and the House leader?

Mr. John Reid: I will include that in the letter. I have those dates in the office.

Mr. Peter MacKay: Okay. Thank you.

In this particular instance you've described, Mr. Leadbeater, you're saying that essentially you would be acting on behalf of a complainant against a government department and would be required to go to the very department that determines your resources. When you talk about strategy, how much information are you required to give in terms of, for example, a request for further resources or for cooperation within their department?

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It seems to me that this is perverse. This is a complete reversal of fortunes, if you are to be acting impartially on behalf of a complainant.

This is like reverse disclosure by the defence to the crown. That's one premise within our legal system that we know is held very sacred, that the crown, on behalf of the government or the Attorney General of Canada, has to disclose its case against the accuser. But if you are suing or you take issue with a government position, you're not required to do the same. Some might argue otherwise, but that's the current law of the land. But that appears to be very much the prevailing situation. Is that correct?

Mr. Alan Leadbeater: It is. It effectively removes a strategic option from us. We will not go and disclose our case to the Minister of Justice in order to get resources, so what it means is we have to limp along without some special resources in those cases. But that's a situation I don't think we should have to face.

Mr. Peter MacKay: So would it be fair to say that it could even go so far as you would not proceed with a certain case for fear of having to make some form of disclosure or you would be so handicapped that you wouldn't be in a position to act impartially?

Mr. Alan Leadbeater: That has not happened to this point, no.

Mr. Peter MacKay: But the potential would exist.

Mr. Alan Leadbeater: I can't think of a case when that would happen, no.

Mr. Peter MacKay: Okay.

Mr. John Reid: We do not put forward the best case if we couldn't put it forward.

The Chair: Thank you very much, Mr. MacKay.

Mr. Grose, please.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

Mr. Reid, I don't have a question. But having spent almost five years on the public accounts committee, I've been subjected to many reports that were, shall we say, a little less than candid. I've seen a lot of bobbing and weaving.

I must congratulate you and your assistants. You're a breath of fresh air. I like your style. After a little more time on this committee, I might not be quite so complimentary, so enjoy it while you can. Thank you.

Mr. John Reid: Thank you.

The Chair: That seems to be a wonderful note on which to thank you very much for this historic appearance before this committee. I think we've gotten the message. We would have to be pretty thick not to have done so. I'll be seeing that we discuss this with all of our colleagues as to what the next steps might be. Thank you very much for your refreshing candour.

Mr. John Reid: Thank you.

The Chair: Before we break up, I would entertain a motion to elect a vice-chair.

Mr. Peter MacKay: Mr. Chair, I would like to put on the record the fact that this snap election doesn't appear anywhere on today's schedule. I do resent somewhat the fact that this has kind of been foisted upon us. If we had known that this was going to take place, we might have had a little more input into how things were going to go. But I realize that's not how it works around here.

The Chair: If I might, I think the former chair expressed the last time around the fact that he had won his election and was going to resign. I don't think it came as any surprise.

Mr. Peter MacKay: It's a fairly significant piece of business—

The Chair: I appreciate that.

I'll now entertain a motion for the position of vice-chair. John.

Mr. John Maloney (Erie—Lincoln, Lib.): I nominate Ivan Grose.

The Chair: Mr. Grose has been nominated for the position of vice-chair.

(Motion agreed to)

The Chair: Mr. Grose is the vice-chair. Thank you.

With that, I will adjourn the meeting.