This is meeting six of the Standing Committee on Access to Information, Privacy and Ethics. Our orders of the day, pursuant to Standing Order 108(3)(h)(vi), are to study allegations of interference in access to information requests. Our witness today, from the Office of the Prime Minister, is Mr. Guy Giorno, the chief of staff.
I would like to mention to colleagues that the committee approved certain other agenda items to be dealt with, should there be time at any meeting. I've included them at the end here, but Mr. Giorno will be the first item of business until the committee is prepared to release him and move on.
This morning the commissioner for access to information tabled her report cards on 24 institutions. I think it was a tough but fair report. I'm sure it will come to play in some of the discussions we have with Mr. Giorno.
Sir, I understand you have some brief opening remarks for the committee.
I see that we have a question first from Madam Davidson.
:
Merci beaucoup, monsieur le président.
I want to begin by congratulating you on your re-election last month, and by congratulating Mrs. Davidson and Mr. Siksay on their respective elections as vice-chairs. I'd also like to thank the committee for inviting me here today and for accommodating my request to appear at the earliest possible opportunity.
As you and I just discussed, Chairman--I'll share this with the committee members--we met 30 years ago during the 1980 federal election campaign at an all-candidates debate in the riding of Etobicoke Centre, sponsored by my high school, Michael Power. The chair was present as an alumnus candidate. He was running in the neighbouring riding of Mississauga South. I was working my 14-year-old tail off for a candidate named Joe Cruden.
On election night, despite the majority victory for my then party, I was sorely disappointed that both Joe and the chair had lost very close races. But I guess history shows that my support was pretty irrelevant or insignificant, because by the time the chairman had started to rack up his six consecutive victories I had already moved on to the other party. I don't think either of us would have imagined 30 years ago that we'd be meeting again, each of us in our respective roles.
Nonetheless, I am happy to be here today. I'm very pleased and look forward to responding to questions of committee members, particularly those related to my responsibility.
Committee members will appreciate that as an unelected government employee hired under section 128 of the Public Service Employment Act, it's not my place to speak for the entire government. As I often repeat--and some of the committee members will have heard me say this--though I bear the title of the Prime Minister's chief of staff, I'm still merely part of the staff.
The supremacy of Parliament is ensured by the principle of ministerial responsibility, and that is the cornerstone of responsible government. The principle requires that those who exercise the constitutional authority of the crown must be part of Parliament and responsible to Parliament. It is ministers, not officials, who exercise constitutional authority; then it's ministers, not officials, who are responsible to Parliament.
When a government employee appears before a committee to answer questions, as I do today, those answers do not alter the fact that it is ministers, not officials, who are constitutionally responsible for the exercise of authority, and who are responsible to Parliament. Expressed differently, the presence of an official like me and the answers I give can assist in the answerability of ministers to Parliament, but do not sever the responsibility of ministers to Parliament.
On January 23, 2006, Canadians voted for change. They sent a message to all politicians that it was time to turn over a new leaf and change the way business is done in the federal government forever.
The first legislative reform introduced by this government was the Federal Accountability Act, the most sweeping and most comprehensive anti-corruption law in Canadian history. It signalled the government's determination to clean up Ottawa after the sponsorship program. It changed the way federal political parties are financed, with no more big money, no more secret trust funds, and no more corporate and union donations. It cleaned up Ottawa's contracting, advertising, polling, and procurement practices, to ensure that taxpayers' money is well spent. It gave real iron-clad protection to whistle-blowers who come forward with allegations of wrongdoing. It ended the revolving door among ministers' offices, the bureaucracy, and hired-gun lobby firms, and it strengthened the access to information law by nearly doubling the number of entities that are subject to access to information.
As Prime Minister Harper said when the Federal Accountability Act was introduced, and I quote, “We are creating a new culture of accountability that will change the way business is done in Ottawa forever”. The objective was to replace the old culture of entitlement with good clean government, because that's what Canadians voted for on January 23, 2006.
A centrepiece of our anti-corruption law was strengthening access to information. The Honourable John Baird explained thusly on April 25, 2006: “Canadians deserve better access to government information. The Government of Canada belongs to the people and the government should not unnecessarily obstruct access to information”. Access to information is the public's right. Subject to the Access to Information Act, every Canadian citizen and every permanent resident “has a right to and shall, on request, be given access to any record under the control of a government institution”.
All ministers have delegated their responsibilities under the Access to Information Act to specifically named public servants, and it is those specifically named public servants, pursuant to delegations of authority, who are responsible for all decisions under the act. No political staff member has received a delegation of authority under the act, and therefore no political staff member has authority to make access to information decisions.
The new Treasury Board policy on access to information, which replaced the weaker policy of the previous government, provides as follows, and refers to a delegation order, in section 6.1.2: “Once an order is signed, the powers, duties or functions that have been delegated may only be exercised or performed by the head of the institution or by the named officer(s) or employee(s)”.
So to repeat, no political staff member has received a delegation of authority under the act, and therefore no political staff member has authority to make access to information decisions. Political staff members are subject to the instructions issued under the authority of the Prime Minister in a book called Accountable Government: A Guide for Ministers and Secretaries of State. That book states,
[Translation]
in section 6.1, on page 37:
Exempt staff do not have the authority to give direction to public servants, but they can ask for information or transmit the minister's instructions, normally through the deputy minister.
[English]
Adherence to accountable government is a condition of continued employment for members of the political staff. In each department, it is public servants, not political staff members, who compile the records in response to an access request, who decide on and give notice of time extensions, who decide which mandatory and discretionary exemptions apply to any records, and who decide whether or not to invoke or apply a discretionary exemption.
I cannot speak for the practice of all departments, but in the Prime Minister's department—that is, the Privy Council Office—after an access decision is made and prior to release, the minister's office—that is, the PMO—is informed of the fact that an access decision has been made and there will be release. The legitimate purposes of this advance notice, which in our case I understand usually occurs approximately four days prior to release, include: to brief our minister on the content, to prepare to respond to questions in question period or from the news media, and to explain the content to anyone who might ask.
The purposes of this advance notice do not include, and must not include: to alter the decision, to vet the content, or to delay, deny, or withhold access. However, this advance notice is entirely consistent with the constitutional responsibility of each minister for the operation of his or her department. An advance notice does not alter the fact that decisions about release, time extensions, and invoking exemptions are made by non-partisan public servants pursuant to delegations of authority.
I'll simply close by pointing out that staff training has covered these points. It covered these points prior to my arrival. After my arrival in 2008, Accountable Government, which covers these points, has been reissued. More recently, I've taken specific steps to reinforce these rules, including the rule that the Access to Information Act must be upheld and the rule that it's improper for a political staff member to instruct public servants in the exercise of their authority. Those rules were confirmed and re-communicated as recently as this year. They've been reissued and re-communicated, so there can be no possibility of confusion.
Chairman, I thank you and members of the committee for your indulgence. I now look forward to answering any questions that members may have.
:
Okay. Well, I'm somewhat surprised that on the tail of that report and on the tail of that conference, where it was nothing short of a scathing indictment of this government's compliance with the Access to Information Act, you would come in here and say that the record of your party should be met with approval of some sort.
She reviewed 24 different ministries, and a majority of them failed. If you look at the record, indeed there are some that she marked with an “F”. Environment Canada and Foreign Affairs and International Trade were off the chart and given a red alert. She said the delays are tantamount to censorship.
You said in your opening remarks that, really, there's no interference by ministers, none whatsoever, that the decision, really, is by the access to information officer. Yet on page 52 of her report, under Natural Resources of Canada, she says:
The combination of staffing instability, a diffuse delegation of authority and senior officials being inappropriately involved in approvals resulted in an unacceptable level of access to information compliance at NRCan in 2008 and 2009. The deemed refusal rate doubled from 2007 to 2008.
That indictment is endemic in a number of other institutions, a number of the other ministries she reported on. We need to know, by what authority do these ministers interfere? You said yourself, it's the ministers and not the staff who are responsible. By what authority do they interfere? Is it convention or legislation? I can't find the exceptions in the Access to Information Act that would, by my estimation, allow this kind of interference.
:
Good morning, Mr. Giorno.
Thank you for your testimony here this morning.
You began your presentation by highlighting the fact that, in your view, when the Conservative party came to power in 2006, it marked a fundamentally positive change in accountability. I would just like to say that not everyone perhaps reads things in the same way as you. For many Canadians, the Conservative party coming to power was not the dawn of a new era as the party claimed.
Over the weekend, I took a look at Mr. Harper's speeches. At the time of his election, he promised an honest, open and accountable government. We saw his star candidate, Mr. Allan Cutler, who first blew the whistle on the sponsorship program after the Liberal debacle that we came to know as the sponsorship scandal. So there was Mr. Harper presenting himself the head of a government of accountability.
I would just like to point out that we feel that, without a shadow of a doubt, the situation is quite ridiculous after four years of Conservative rule. There was an item on the program Enquête in which Hélène Buzzetti, the president of the Canadian Parliamentary Press Gallery, expressed a good deal of concern about access to information in your government. Le Devoir reported that it takes 300 days to get information about Afghan detainees. The Globe and Mail said that it took 32 months to get information. A news agency needed 82 extra days to get information about the allegations at the heart of the investigation of Christian Paradis.
Everyone can see that there is one delay after another and that there is a huge amount of censorship. When a government operates in that way, when delay follows delay and when documents are censored, it is an affront to the very roots of democracy. That is what journalists are claiming.
As a member of Parliament under your Conservative government for four years, I see things too. It was no coincidence that Parliament was prorogued just as we were in the middle of a storm about Afghan detainees and about the environment episode in Copenhagen. Shutting down Parliament to avoid answering questions as important as those is also thumbing one's nose at democracy.
In this committee, we worked for three months to try to make recommendations about the Access to Information Act. We heard from a number of witnesses, like Mr. Marleau, we looked at all Mr. Reid's recommendations for improving the act, and we got barely a page in reply from Mr. Nicholson telling us to go back and do our homework. My feeling is that this too is showing contempt for the parliamentary system.
I mentioned Le Devoir, The Globe and Mail, and The Canadian Press. but I forgot to mention the Ottawa Sun that wrote that Harper was ruling like a king over a defunct democracy.
Currently, there are allegations of systematic political interference in ministers' offices in an attempt to block or obstruct the flow of information. Section 67.1 of the Access to Information Act reads as follows:
67.1 (1) No person shall, with intent to deny a right of access under this Act,
(a) destroy, mutilate or alter a record;
(b) falsify a record or make a false record;
or (d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).
(2) Every person who contravenes subsection (1) is guilty:
of (a) an indictable offence...
:
Thank you, Chair. I'll try to be brief.
The member touched on a number of points.
The first is that the member referred to section 67.1 of the Access to Information Act. That is in fact the law. As recently as February, I communicated that to ministers' chiefs of staff by sending out a memorandum that confirmed the provisions of accountable government to which I have referred, confirmed the need to uphold the act, and reminded them and their staff members that section 67.1 of the act makes it an offence to obstruct the right of access. That was a memorandum I sent on February 9.
I followed that up with subsequent training for the staff members of ministers who are responsible for issues management. I appeared before one of their regular meetings and addressed the Access to Information Act and my expectations, and touched on some of the points the member has raised.
I think the record shows that the government has, in fact, introduced many positive reforms to access to information. The member refers to responsibility. It was this government that in the Federal Accountability Act added subsection 4(2.1) of the act, which places on heads of institutions--that's ministers--the responsibility to ensure that there is timely, complete, and accurate disclosure of records without regard to the identity of a requester. That was a reform of this government, and the government's access to information policy was strengthened to that effect.
It was in fact this government that brought in, through the Federal Accountability Act, a requirement in the statute to have the responsible minister compile statistics so that members and the media and the information commissioner can ask the sorts of questions that are being asked.
I'll close by stating that the timeframe for compliance is an issue, and it's not something of no concern. It's the government's policy that departments are to respond in the timeframes contained in the act or extend time in accordance with the act, subject to the right of a requester to go to the information commissioner and ultimately to the Federal Court.
It's obviously something of concern; otherwise, the government wouldn't have proceeded with the Federal Accountability Act, nor would it have strengthened the access to information policy in the way it did.
Thank you for being here today, Mr. Giorno. I'm sure you're a very busy guy, and I'm sure you had many other things you could be doing this morning. So thank you for coming.
I want to echo what other members have said, given our concerns about the initial request around this issue, but also given the information commissioner's report card today. Many of us are very concerned that there is a developing culture of secrecy, a fairly highly developed culture of secrecy, that there has been mounting inattention to transparency on the part of this government. And many of us believe that access to information and the ability of Canadians and others to see the information of government is the oxygen of our democracy, and we're concerned that depriving our democracy of that oxygen is a very serious issue.
The information commissioner's report today is very serious, indeed. The fact that the Privy Council Office gets a “D” in that report is, I hope, very concerning to you and your colleagues. The fact that one department, Foreign Affairs and International Trade, was so bad that the commissioner couldn't even find a way to rate it in the scale of her exercise and she had to issue a red alert is also extremely concerning and something that I hope is demanding the immediate attention of government.
That being said, I want to ask some specific questions. You described the notification process that happens when an access request is ready to be released. You talked about four days' notice that's given. There's been some concern that this notification process has in fact turned into a consultation process, where staffers have tried to convince officials to release less information. They have made suggestions that it might damage relations with another level of government, a provincial government or a foreign government, as a way of diverting it to the Privy Council Office and further delaying it.
Could you comment on the fact that the notification process seems to have morphed into something other than mere notification so that a department can prepare an appropriate response to released information?
:
Chairman, I thank the member for that question.
I won't comment on the statistics to which he has referred; he's asking about my background in access to information and privacy law.
I've been practising law for almost 20 years. I was called to the bar in 1991, about 81 days after the Ontario Legislature brought into force the first municipal access to information law in the country. I began practising in that area—freedom of information, or access to information, as it's called in many of the provinces—appearing in one of the first eight cases decided under the Ontario statute, appearing in court on two of the first five judiciary applications under that statute.
Shortly before coming here I was engaged on behalf of a requester as legal counsel in a four-year struggle to get the City of Toronto to cough up documents related to a major transaction involving the sale of street lights. I won six consecutive decisions on that point, fighting obstruction and stonewalling. In fact this was such a long case that three of those six successful decisions under the act were argued when I was in private practice; the decisions weren't rendered until after I came here.
I have experience as a requester, as a third party, as well. Before coming here I would lecture routinely on this. Mr. Siksay is from British Columbia, where there is a robust law. Ontario, where I come from, and Prince Edward Island are the only two provinces where hospitals and health care institutions aren't subject to freedom of information laws or access to information. I was an advocate and argued that hospitals should voluntarily adopt access to information policies to make themselves more transparent and accountable.
I was a member of the Freedom of Information and Privacy Association, which is a B.C.-based society that is intended to promote and advance the cause of access to government information. In fact I was a member of that association until the day I took this job. With the conflict of interest rules, I was required to relinquish it.
I have spent my entire legal career dealing with this area of upholding these principles. While as a public servant who was hired under section 128 of the Public Service Employment Act I am subject to certain restraints, I think my experience and my position on these matters are a matter of record.
I too thank you, Mr. Giorno, for appearing before the committee.
Having listened to your opening remarks and your responses to some of the questions that were put to you this morning, I'm having a real problem finding the reality of what you're saying in terms of the real situation and especially in light of the report that was released this morning by the interim information commissioner. There are two different pictures here.
I'm assuming that, given the work that was done by the interim information commissioner, you too must recognize that with what you're saying, despite the rosy picture being painted by Mr. Poilievre, a majority of the institutions she looked at are still not in fact complying with the act but are having some really serious issues. They're either given a failing grade or there's a red alert on one of those.
I want to go back to the situation of Mr. Sparrow, because you make a distinction between requests from the news media and ATIP requests. I wonder what that distinction is, because surely no matter who is requesting the information, the same principle of transparency and accountability must apply. So why would a routine request for information be flagged by the Prime Minister's Office, or the minister's office, as was the case for Mr. Sparrow, even if it was just a routine request from the news media?
:
Chairman, I think the member has asked an interesting question. She touched on my experience under access to information or freedom of information. Before coming here as legal counsel dealing with these access to information matters, I or my client and I have been at the receiving end of political interference, and I had no intention of coming here and allowing it to continue. So my record there is very clear.
As for lobbying law, the law governing lobbyists, I said I have always been a champion of tough, rigorous, stringent rules governing the conduct of lobbyists. For some reason the House committee didn't have any interest in what I had to say, but I appeared before the Senate committee holding hearings into Bill C-2, the Federal Accountability Act, and spoke specifically on lobbying law and talked about strengthening it. It was already a very strong bill, mind you.
I appeared by teleconference before the legislative committee of the province of Alberta that was considering the introduction of that province's first lobbying act. I have appeared before the city of Toronto's council, and I also made representations to the legislative committee in the province of Ontario, urging the strengthening of lobbyist regulation at the municipal level. I've been consulted internationally by the Republic of Ireland, for example, and other OECD countries that are interested in adopting their own lobbying law regimes. I have extensive experience.
I wouldn't necessarily say this of me, but someone said I was one of the leading experts, at least leading experts outside government, on the law and the regulation on the business of lobbying. It's something that before coming here I believed in quite passionately, for the reason I've identified, and that is, whether we're talking about government resources, taxpayers' dollars, government information, government records, the networks a public servant or a political staff member accumulate, none of that information, none of that money, none of those networks belong to individual politicians, staff members, or bureaucrats; they belong to Canadians. That's why it's important to have a strong lobbying law regime, strong access to information regime, and strong accountability rules generally.
Now, just for the record, in response to Mr. Poilievre's comments about the record of this Conservative government, it should be noted that the percentage of requests where all information is disclosed has fallen dramatically since this government has come into power, and the percentage of complaints filed with the information commissioner has increased dramatically. I think we need to set the record straight.
That said, in this morning's press conference the information commissioner said that there is a “lack of will to be transparent”. She also said that Canada is “no longer a transparency leader”. This is Canada's information commissioner. She also said that we need to change the legislation, essentially to force the government to comply with time requirements.
What that tells me is that, notwithstanding that you may have been operative in creating this kind of law when you were practising law, just because you participated in making the law doesn't mean you feel a necessity to comply with it.
Frankly, Mr. Giorno, it seems to me that the only reason the information commissioner would recommend changing the law is because of this government's systemic problem with always bending and pushing the envelope, at every level.
Could you tell me why you would think the information commissioner would want to change the law to force compliance? And if that is a valid request, would you suggest to the Prime Minister that he change the law?
:
Chairman, the member has asked me to talk further about some of the changes that were contained in the Federal Accountability Act. I'll start by talking about access to information before turning to other areas.
There were a number of other changes to the Access to Information Act that, even today, haven't received, I think, the attention or the publicity they should.
The definition of “record” was updated in the statute, and that's important, because the old definition of “record” used to be restricted to things on a long list of different types of media, different forms in which information could be contained in records. In order to make the act technology-neutral or to allow it to keep up with the advances in technology, as information-keeping and record-keeping practices change, there is now a very simple definition. It removed the long list, and it says:
“record” means any documentary material, regardless of medium or form;
Of course, that's a pro-access improvement, because it means that as technology changes, everything in government's possession is subject to the act.
The Federal Accountability Act also added a new section to the Access to Information Act--I believe it was section 72.1--which provides the following:
The head of a department or a ministry of state
—in other words, a cabinet minister—
shall publish an annual report of all expenses incurred by his or her office and paid out of the Consolidated Revenue Fund.
That, again, is new in the Federal Accountability Act.
The act also added a new paragraph 70(1)(c.1), which provides that the minister responsible shall, and I quote:
cause statistics to be collected on an annual basis for the purpose of assessing the compliance of government institutions with the provisions of this Act and the regulations relating to access;
Finally--and this is probably the most significant of the reforms, apart from nearly doubling the list of entities.... Chairman, earlier today members asked about this, and concerns prior to 2006 that different types of requesters—news media, opposition researchers—were treated differently are well documented. Of course, that's not what the act provides. The act provides that the processing of requests should be “applicant-blind”, to use the term that's used in the United Kingdom in their freedom of information legislation.
So subsection 4(2.1) crystallizes the requirement that the processing of requests should be, and I quote, “without regard to the identity of a person making a request for access to a record under the control of the institution”. And that was intended to address well-documented and legitimate concerns about different access being given to different types of requesters.
The courts have made clear--and this is the principle of not just this act, but freedom of information legislation in the provinces and around the world--that if Fred makes a request for a record, he should receive the same decision Sally receives, as should John, as should Jane, and that when a news reporter makes a request, he should receive the same determination under the statute as would an opposition researcher, a stakeholder, or an ordinary citizen. Clarifying that and improving the access to information policy I think were important reforms.
And I apologize, Chairman, because I don't even have time to talk about the changes in the Federal Accountability Act that are not related to access to information.
Mr. Giorno, as much as I like a good tennis match, it would seem the Conservatives and Liberals go back and forth about who was bad and who was worse. I look forward to the day when maybe it's who was bad and who was better on this issue. Certainly we're not there yet.
I also have to say that I always enjoy a very partisan guy struggling to be non-partisan. It's been interesting to watch you in that role this morning.
I have to say the Liberal government isn't the standard around access to information. I think the standard around access to information is easily the Conservative Party's own platform in the 2006 election. Anyone who has any interest in access to information would agree it was a well-thought-out and comprehensive platform. I suspect, given your own personal interests in access to information that we heard about this morning, you're well aware of that platform.
The platform had eight points. When I look at that and when I've questioned witnesses since I've been on this committee, it appears the Conservatives have only done one—the Federal Accountability Act and the expansion to all crown corporations. We haven't seen an introduction of the information commissioner's proposed changes or reforms to the Access to Information Act. We haven't seen the commissioner get the power to order release of information. We haven't seen cabinet confidences that are excluded reviewed by the information commissioner. We haven't seen public officials obliged to create records necessary. We haven't seen a public interest override for all exemptions. We haven't ensured that exemptions from the disclosure of government information are justified only on the basis of the harm that would result from that disclosure. We haven't ensured that disclosure requirements for access to information can't be circumvented by secrecy provisions in other federal acts.
It strikes me that by that standard, you're not doing as well as you'd like us to believe. What's your comment on that? What's the plan? Is there a significant commitment, or have the Conservatives forgotten what it was like to be in opposition and how important access to information is to the functioning of Parliament and to our democracy?