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View Charlie Angus Profile
Last week the commissioner talked of her concern about piecemeal solutions. She certainly sees that we have major problems.
You pointed out that Canada is slipping further and further behind. There are third world countries that have better responses for citizens than we do right now.
One of the things she's looking for is the issue of order-making powers, so that she would not be sitting around fighting about this all the time but would have real power.
Would you support that as a way of beginning to overhaul the issue of people's right to information?
View Brent Rathgeber Profile
Ind. (AB)
I do conceptually believe that the Information Commissioner, who is independent of government—she's an officer of Parliament—ought to have order-making authority.
In fairness, Mr. Angus, I must tell you that my bill will not achieve that.
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-05-29 15:56
Thank you, Mr. Chair.
Thank you for inviting me to speak to you today in relation to your study of Bill C-461.
This bill proposes the repeal of section 68.1 of the Access to Information Act, which excludes information relating to the Canadian Broadcasting Corporation's journalistic, creative, or programming activities, subject to an exception for information relating to its general administration.
The bill would replace that exclusion with a new exemption, which would allow CBC to withhold records that could reasonably be expected to prejudice the journalistic, creative, or programming independence of the CBC.
At the outset, I would like to describe briefly the general structure of the act, the limits to the right of access and the powers given to my office.
To that end, Mr. Chair, I have circulated a document to committee members which sets out in a little more detail the various exemptions and exclusions, and explains the difference between the two. The document also explains the general provisions of the legislation as applied to my powers. It provides committee members with more information.
The legislation creates a right to access information under the control of government institutions, subject to specific and limited exceptions. The act limits access by way of exemptions and exclusions.
Exclusions provide that the act does not apply to certain records or information. The act also includes various exemptions that permit or require institutions to withhold a range of records and information.
The act gives the commissioner broad investigatory powers, including access to all the documents under the control of the federal institution to which the act applies. The commissioner has broad powers to require the production of these records.
Thus, when an exemption is invoked by an institution, the commissioner has access to the documents in their entirety. However, where an institution invokes an exclusion, access to the underlying information or records depends on the nature of the exclusion relied on by the institution.
The commissioner's access to records and information, which had been identified by the CBC as falling within the exclusion found in section 68.1, was at issue before the Federal Court of Appeal at the time of my appearance in October 2011. In November 2011, the Federal Court of Appeal rendered its decision.
The question of the extent of the commissioner's powers to examine documents for which an exclusion is invoked was raised in the investigations of the many complaints about the CBC's use of section 68.1 of the act.
As the result of the CBC's challenge to my power to compel the production of documents mentioned in that section, the Court of Appeal confirmed that the commissioner is allowed access to documents covered by the exclusion in order to determine whether the exception fell within the exception for information relating to the administration of the CBC.
With respect to information that would reveal a journalistic source, the Federal Court of Appeal's explanation was:
The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception. In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record—or the part thereof—revealing this type of information would be exempt from the Commissioner’s power of examination.
In its decision, the Court of Appeal resolved the scope of the commissioner's powers to compel the production of the records to which CBC has applied section 68.1. What the decision does not resolve is the scope of the exception to the exclusion and the meaning of the terms used in section 68.1, such as “journalistic, creative or programming activities”. So this does not preclude subsequent litigation on the scope of the exception or the exclusion.
Before I discuss the specific modifications proposed by Bill C-461, it is important to emphasize that the challenges related to access to information are complex. They demand thoughtful, unified action, and are not easily amenable to a piecemeal solution.
Like my predecessors, I have more than once observed that the act requires modernization to bring it in line with more progressive and international models. While it is true that the act was considered state-of-the-art legislation when it received royal assent in 1982, it is now significantly outdated. While acknowledging the need to amend the law, I maintain that it should not be done in a disjointed way, since this leads to issue-specific amendments that erode the act's status as a law of general application.
At the very least, the structure of the act as a whole must be considered when amendments are proposed. We must examine not only the specific interests to be protected by changes or additions to the law, but also the spirit of the law, the way in which it is structured, and its general framework. The chosen approach must, in my view, preserve the law's character as one of general application.
The amendments proposed in Bill C-461 in relation to the CBC reflect what I suggested when I appeared before this committee in October 2011.
Since the committee has been having hearings, I have been following the comments of the stakeholders very closely, as well as the comments of parliamentarians in the House of Commons, and I'll be happy to discuss some of the issues that have been raised by various parties.
At this time, Bill C-461 proposes the repeal of section 68.1 and the insertion of a discretionary, injury-based exemption that would permit the CBC to withhold information that “could reasonably be expected to prejudice the corporation's journalistic, creative, or programming independence”. A discretionary, injury-based exemption will ensure requesters' rights to an independent review process in all matters.
To be clear, any information or records obtained by my office are reviewed solely for investigative purposes. Indeed, the access act's confidentiality requirements are very strict and do not allow the disclosure of any information during the performance of my duties.
In concluding, I ask the committee to consider how these proposed amendments to the Act will apply to the more than 200 complaints currently under investigation. Will the new provisions be applicable to ongoing files, that is, requests and complaints to CBC, or only to new requests? The bill in its current form makes no mention of transitional measures for dealing with existing files. So I invite the committee to consider that matter as it deliberates.
In my view, it would be better that the new provisions be applicable to existing complaints and requests since a requester may simply make a new request, thereby benefiting from the application of the new provisions. But, for that to be the effect, a specific provision is needed, in my view.
With that, Mr. Chair, I would be pleased to answer your questions.
Emily McCarthy
View Emily McCarthy Profile
Emily McCarthy
2013-05-29 16:20
It would just clarify the application of the statute. If you have a transitional provision, then it would be clear to all involved which law would be applicable, whether the ongoing cases would be governed by the new provision or whether we would continue to investigate based on the previous provision. But as the commissioner mentioned earlier, that raises a difficulty in the sense that the requester could then make a new request for the same information under the new provision.
So you can see where there would be potentially a difficulty, where we would be required to make a finding under the existing language, as it is right now, but also have a complaint relating to the new provision—in a sense, a use of resources that might not be entirely productive.
View Pierre Nantel Profile
I must interrupt you so that I can ask you another question.
In terms of the production of documents, would you have not preferred that the Information Commissioner have that power as well?
Gregory Thomas
View Gregory Thomas Profile
Gregory Thomas
2013-05-29 17:04
Our principal interest here is to....
The CBC/Radio-Canada issue is not our main concern, given our mandate. The issues related to the Access to Information Act are uniquely specialized. Mr. Rathgeber is a lawyer. He is very familiar with those issues. According to him, the wording of the current legislation is not specific enough.
We have not thoroughly examined this. But Mr. Rathgeber's point is that an exemption is a bad way to address the issue of the independence of the CBC. He believes that an injury test will give the courts and the Information Commissioner a better tool to protect the independence of the CBC, while ensuring that the CBC complies with access to information requirements.
Maryse Bertrand
View Maryse Bertrand Profile
Maryse Bertrand
2013-05-27 15:37
Thank you, Mr. Chair.
Chairman, members of the committee, on behalf of CBC/Radio-Canada, I would like to thank you for the opportunity to be here today to discuss our concerns about Bill C-461 and its potential effect on the public broadcaster.
We are concerned that this bill as currently drafted will have some unintended consequences that may undermine CBC/Radio-Canada's ability to do its job as mandated by Parliament.
First, the bill would remove the current protections for journalism programming and creative activities under the Access to Information Act. There was much discussion in 2010 and 2011 about section 68.1, which is the exclusion for these activities, and how it needed to be clarified. In fact, it has been clarified. In November 2011, the Federal Court of Appeal made it crystal clear. The Information Commissioner can review documents held by CBC/Radio-Canada to determine whether the exclusion applies, except when it comes to journalistic sources.
I would like to read what the court of appeal said:
...the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Commissioner’s power of examination.
That decision is extremely clear and at the time, both CBC/Radio-Canada and the commissioner expressed their satisfaction with it. The government, in its response to this committee's study, wrote that the decision, and I am quoting: “settled the dispute between CBC and the Information Commissioner”.
Indeed, since then, we and the commissioner have been working together to resolve the files which had been awaiting the court's decision. As you have heard from the commissioner, that work could be completed by the end of this year and we are collaborating closely with the Commissioner's Office in order to meet our goals.
This bill is proposing to do away with 68.1 completely and to replace this exclusion with an injury-based exemption. That change will introduce a great deal of uncertainty regarding its application as the commissioner, CBC/Radio-Canada and third parties will have to debate not one, but two elements now: whether the material is journalistic, creative or programming information, and secondly, whether the release would prejudice the corporation's independence. This will be the case even where there are confidential sources. We are loosing ground, going backwards, where sources are concerned.
Introducing an additional requirement of “prejudice to independence” which is untested in any current case law in Canada will inevitably bring us to a new level of uncertainty that will likely require several cases and years to resolve before a sufficient body of legal decisions exist to give us all the necessary guidance.
Parliament must balance the desire for more access to information for federal institutions, with the requirement that media organizations such as ours operate effectively and independently.
The specific protections in both the Broadcasting Act and Access to information Act for journalism, programming and creative activities, exist to ensure independence.
Incidentally, those protections are not unique. As the commissioner pointed out in the comparison document that she shared with you in 2011, public broadcasters in Ireland, England, and Australia, all have specific exclusions from their access to information laws for their journalism programming and creative activities, and all without any test in order to demonstrate a negative impact on their independence. Why would Canadians want to change that for their own public broadcaster? Why is such a change necessary when CBC/Radio-Canada is among the strongest performers under access to information?
Here are some facts about that. We have taken the lead among organizations in posting on our website much of what we release under access. That's in addition to the board minutes and the business travel and hospitality expenses that we post proactively. CBC/Radio-Canada earned an A from the commissioner in her most recent review for its performance under the act. Last fall, the corporation was recognized for improving transparency and accountability in the 2012 IPAC/Deloitte Public Sector Leadership Awards.
But that accountability goes beyond access to information. Every year we provide detailed financial information to the CRTC, which oversees our licence conditions. Every year the Auditor General of Canada signs off on our financial statements. Every five to 10 years he conducts a comprehensive special audit. In his most recent audit tabled in Parliament this year, the Auditor General gave CBC/Radio-Canada a clean audit opinion. That's the best result a federal agency can obtain.
We also report to our minister, to parliamentarians, and to Canadians through our corporate plan, our annual report, and our quarterly financial statements published on our website. We also have an independent board of directors, including an audit committee and a governance committee, all appointed by the government to oversee our budgets and our operations. It's their job to ensure that our programming and journalistic resources are being spent wisely.
This means while we are accountable under access to information for the general administration of our corporation, the law also draws the line at publicly releasing those things that would undermine our independence, or prejudice our competitive position—things like how much Peter Mansbridge gets paid, or how much we paid for the upcoming Olympics, or the details of our promotional strategies for new shows. For those things, it is the responsibility of our board of directors to protect both the public interest and the corporation's arm's-length independence.
There are two other unintended defects of C-461 I would like to mention with respect to proposed changes to the Privacy Act. These are the consequences I would now like to discuss.
First, the bill proposes to strip away the existing Privacy Act protections for journalism, programming and creative activities—but only for CBC/Radio-Canada. It would allow the subject of a CBC/Radio-Canada investigation to demand all information about them held by one of our journalists, even before we broadcast. Only CBC/Radio-Canada journalists would be subject to this provision. You can imagine what this would do to the investigative journalism that Canadians value.
Finally, with respect to salaries, C-461 proposes to make public the exact salary of the highest earners working for a government institution—rather than the salary ranges of their position, which is the current law. This has a much broader impact than just on CBC/Radio-Canada.
The Privacy Commissioner has established four tests to determine whether an invasion of privacy is justified, and one of those tests is whether there is a less privacy-invasive way of achieving the same end. The commissioner has put it this way:
...disclosing salary ranges or aggregate salary amounts for relevant groups, as opposed to specific salaries of individuals, could prove just as effective in achieving enhanced transparency and accountability without incurring the corresponding loss of individual privacy.
In our case, we would suggest that the combination of our salary ranges being public—they're available proactively and under access to information—the aggregate of our senior executive salaries being available in our annual report, and a specific salary being the express responsibility of our board of directors, all of that achieves the goal of enhanced transparency and accountability. It does so without undermining our ability to maximize public value in our highly competitive business environment where other broadcasters' salaries are protected.
Should CBC/Radio-Canada be accountable? Absolutely, and it is. Should there be oversight? Absolutely, and there is. But in addition to accountability and oversight, CBC/Radio-Canada needs to be able to do the job it is being asked to do by Parliament. In our view, this bill will not help us do that.
Thank you very much.
View Patricia Davidson Profile
Thank you very much, Mr. Chair.
Thanks very much for being here, Mr. Rathgeber, and for presenting your Bill C-461 to us. I certainly appreciated your presentation and the outline that you went through as you explained what your intent was with the bill.
I know that you're well aware that this committee did an extensive study of section 68.1 of the Access to Information Act when we were doing an earlier study. We recommended that section 68.1 be amended to comply with the Federal Court and Federal Court of Appeal's decisions on the matter of 68.1.
Do you think that your bill responds to the committee's recommendations? Would you also tell me why you feel that way or not?
View Brent Rathgeber Profile
Ind. (AB)
I absolutely do. The Information Commissioner testified that she does not fancy exclusions. She prefers exemptions because an exclusion takes the subject-matter out of the operation of the act and, therefore, takes away any ability for her to objectively review the decisions of the information officers.
I can't take credit for the discretionary exemption. The credit for that belongs to the Information Commissioner who is going to testify in front of this committee next week.
I'm trying to find her exact words, but it's almost verbatim what the new section 28.1 would say. This committee recommended that section 68.1 of the Access to Information Act be repealed in accordance with the expert testimony heard during the study. In so doing, the government should consider international models as presented by the Information Commissioner.
It was the Information Commissioner who came up with the injury-based test and changed the exclusion to a discretionary exemption. I don't take credit for that. There has been some slight wordsmithing with respect to her testimony in front of this committee. But yes, I do believe this amendment is in accordance with the committee's study, which was an important study in light of the litigation between the Information Commissioner and the Canadian Broadcasting Corporation.
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-05-08 16:06
Good afternoon, Mr. Chair and members of the committee.
I'm accompanied today by Layla Michaud, who is my director general of corporate services and the office's chief financial officer.
I will briefly review my office's achievements, our priorities for the next year, and some of the challenges we face.
Overall, I'm must say that I'm very proud of the incredible work being done by my very dedicated staff.
In 2013-14, we will have $10.5 million available to carry out our work. An added $2.6 million was provided to my office to cover the costs of relocating our offices next fall. We must repay this increase in appropriations over 15 years. In the 2014-15 fiscal year, our budget will be just under $10 million, which includes a $500,000 reduction as a result of the deficit reduction action plan. By the end of 2014-15, we will have fully implemented the budget 2012 cuts and the cost containment measures, which in total will amount to 8% of our budget.
For 2013-14, 77% of our financial resources have been allocated to our program and 23% to our corporate services. In terms of our human resources, I have 93 full-time equivalents on staff, down from 106 at this time last year. Of the 93, 70 work for the program and 23 for corporate services.
As you know, over the last four years, I have made significant changes to streamline our entire operations. I think the results are very positive.
On the program side, we have resolved 7,300 complaints since April 2009, including some of our oldest and most complex cases that had accumulated over the years. For a fourth year in a row, we have completed more files than we received during the year. Our median turnaround time is now 215 days and, more importantly, 86 days from the day cases are assigned to an investigator. I have strengthened our legal capacity to assist with formal investigations and litigations. That helped reduce our outsourcing costs for legal expertise.
In internal services, we are completing our information management and information technologies strategy, which we began four years ago. In the past year, I have also outsourced all our human resources activities to Shared Services Canada.
As you have seen from my report on plans and priorities, I have set ambitious performance targets for our program, and our internal services will be facing a challenging year in 2013-14.
That being said, my focus remains on the realization of the key results area of my strategic plan, which will be in its third and final year. I will hence, in this fiscal year, renew this strategic direction for the following three years, to lead the OIC through to the end of my mandate in 2017.
On developing a leading access to information regime, my focus in the next fiscal year will be to complete our three systemic investigations: into consultations, interference with the access to information process, and on text-based messaging. I also plan to complete the investigation I launched recently in response to the environmental law clinic complaint.
To coincide with the 30th anniversary of the Access to Information Act, and building on 30 years of experience at the OIC, we will issue recommendations for modernizing the act by way of a special report to Parliament in the fall of 2013.
We will continue to strive to provide exemplary services to Canadians. As you saw in our report on plans and priorities, I have a dedicated team, with difficult targets. Those targets are to complete 85% of the administrative complaints within 90 days and 75% of priority or early resolution complaints within six months. My goal is to leave, at the end of my term, a manageable and up-to-date inventory of cases to my successor.
As part of our work in this regard, we will target the complaints in our inventory that deal with special delegations—national security, the Canadian Broadcasting Corporation and the Canada Revenue Agency. We will also continue to work towards the resolution of the oldest complaints in our inventory and to closely follow the progress of our investigations.
In addition, we will keep seeking ways to be an exceptional workplace. To that end, we will roll out a comprehensive talent management program, a new human resources plan, as well as a code of values and ethics, with excellence in all aspects of our work as our goal.
Our internal services will be responsible for the relocation of our office in the fall, the completion of our information management and information technologies strategy, and for exploring further the opportunities for shared services with other agents of Parliament.
Mr. Chair, one of the fundamental principles underpinning access to information is having an independent oversight of government decisions on disclosure. The Access to Information Act explicitly prescribes that the Information Commissioner “shall receive and investigate”—it's a positive legal obligation, which leaves me no discretion—the complaints of individuals who believe that their rights under the act have not been respected.
Even though I was able to decrease my inventory of complaints by close to 29% in the last four years, I still have about 2,000 files in my inventory at this time. At the same time, we are receiving more administrative complaints. We are up by 38% in the last fiscal year. In the last month alone, in April 2013, my office registered 277 complaints. The additional efficiencies I can now make will remain marginal.
When I appeared last year on the 2012-13 main estimates, I did not know whether my office's budget would be cut. In a letter to the Minister of Justice at the time, I wrote:
The overall conclusions of my review indicate that any reductions to the Office's existing funding envelope will potentially have significant adverse impacts on program results, including eroding the significant progress made over the last two years in reducing the inventory of longstanding cases and our ability to deal with the demands of our current inventory.
Hence, if you ask me today the question whether my budget is enough to accomplish my mandate, my answer is no.
In the coming months I will continue, however, to work to improve our performance to meet our ambitious targets, but I will also—and I feel I must—be seeking additional funds to ensure that the Office of the Information Commissioner can meet its obligations under the act. Frankly, Mr. Chair, I think if I did not do that, I would be acting irresponsibly.
With that, Mr. Chair, my colleague and I are here to answer your questions.
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-04-24 15:31
Thank you kindly, Mr. Chair.
Good afternoon. Thank you for your invitation to appear in relation to your study on my annual reports for the years 2010-11 and 2011-12. These two years represent the first two years following my official nomination as Information Commissioner, on the heels of having served in the position for an interim year in 2009-10.
Preparing for this appearance caused me to reflect on the work the OIC team has accomplished in the last three years. It also caused me to review the conditions that existed at the time I took the helm of the office, conditions that have informed and guided my actions since then.
Let me review these briefly.
First, when I took over as interim commissioner in 2009, the OIC was literally crippled by an unprecedented inventory of old cases, dating as far back as 2002. The number in the inventory at the beginning of that year stood at over 2,500 cases. This is compounded by the fact that the OIC has received in the last four years an average of 1,600 additional cases a year. The average turnaround time for a case at that time was around 450 days.
Second, the Federal Accountability Act had recently come into effect. It brought 69 new institutions under the purview of the act, most notably, as you know, a number of crown corporations, along with new exclusions and exemptions, which added a new level of complexity.
Third, there had been a steady decline in two key performance measures in accessing federal government information. In terms of timeliness, only slightly more than half of all requests made to federal institutions were completed within 30 days. In terms of disclosure, less than one-fifth of all requests resulted in all information being disclosed.
Fourth, the open government movement was developing rapidly at the time, in countries like the United States, the United Kingdom, and Australia.
And fifth, the office's corporate governance was in need of a serious makeover.
Given these challenges, I set out a clear direction in 2010-11 in the OIC Strategic Plan, which has three key result areas: exemplary service to Canadians, a leading access to information regime, and an exceptional workplace. The annual reports of 2010-11 and 2011-12, as well as the upcoming 2012-13 annual report, highlight our achievements in addressing these key result areas.
When I first took on the role of information commissioner, I made a commitment to maximize the effectiveness and timeliness of my office to meet the needs and expectations of Canadians. As the annual reports show, we have made great strides towards the achievement of this objective through sustained and ongoing efforts.
Let me give you some of the key numbers.
Our inventory now stands at—and allow me to do this—1,796 files. I know people tell me I'm not supposed to use exact numbers, but if you lived in my world, one less file is one more accomplishment. That amounts to a reduction of 28.5%.
We've had close to 7,300 complaints since April 2009, including some of our oldest and most complex cases that had accumulated in the office over the years.
Our average turnaround time is now 380 days, which is just slightly over 12 months. More importantly, if you take out the outlier, which is the old cases that we are continuing to close, our median turnaround time now stands at 215 days.
The one measure I'd like you to keep in mind for my next appearance on the main estimates is that our median turnaround time, once a case is actually assigned to an investigator, is now around 86 days. That means that when I have somebody to assign a case to, people can expect a result in 90 days. Unfortunately, I don't have sufficient people to assign all the cases to at this time.
One of the challenges we now face is the changing composition of our complaints. Our caseload is almost exclusively composed of complex refusal files. Really, about 88% of our files are now complex files, a large proportion of which deal with issues of national security and international affairs, complaints against the Canada Revenue Agency, and complaints against the CBC.
During the period of time under review, we dealt with some key investigations, such as the first referral to the Attorney General under section 67.1 and the special report dealing with interference in the processing of access requests.
During that time, we also had some key court decisions, such as the Bronskill decision, clarifying cases dealing with national security. There was also the Federal Court of Appeal's decision confirming the commissioner's authority to compel the production of documents under the control of the CBC. In addition, the Supreme Court of Canada issued a decision stating that ministers’ offices are not part of the government institutions for which they are responsible. These decisions are now being applied through our investigations, and our upcoming annual reports will shed light on their implications for requesters' rights.
On the key result area of a leading access to information regime, we have been active on several fronts. It is, of course, not a secret that I am a strong believer in the need for the Access to Information Act to be reformed. But the focus of our activities for the period under review was on the overall performance of the access regime and on open government.
During this period I completed the three-year plan on report cards, which specifically looked at timeliness. In the course of this project, we reviewed 32 institutions among those that receive the most requests.
We made a number of recommendations, both at the institutional level and at the Treasury Board Secretariat, the body responsible for the administration of the act. Most of these recommendations have been implemented and have achieved positive results, the most noteworthy being the collection of detailed statistics with a view to better diagnosing the problems in the system and the various modifications to Treasury Board policies dealing with delegation of authority in mandatory consultations.
The scrutiny of this committee over the years has also played an important role in prompting institutions on to better compliance with the act. I have asked institutions in the most recent report cards to report their progress in implementing our recommendations in their mandatory annual reporting to Parliament under the Access to Information Act. That request was granted by the Treasury Board Secretariat, which, to my knowledge, is going to require that institutions indicate their response to our recommendations in their reports to you.
It is my hope that this committee will review these reports and follow up on them as you see fit, to ensure ongoing scrutiny of the performance of institutions in meeting their access to information obligations under the act.
We also completed the investigation into the coordination of access to information request system, called CAIRS, where I recommended to the President of the Treasury Board that all federal institutions post the summaries of completed requests on their websites, and that a central search feature be enabled to allow the public to search the lists of requests.
Since January 2012, all federal institutions have to post this information on their website, and the government is planning to have searchable summaries by next year.
During the two years under review, I spent considerable effort on promoting the benefits of the open government movement—in speeches, before this committee in 2012, and through a joint resolution of all information and privacy commissioners in 2010, which called on all governments to embrace open government principles for greater transparency and accountability.
I was really happy to see that the government adopted an open government platform in the spring of 2011.
On behalf of all the information and privacy commissioners of Canada, I also sent a letter to the President of the Treasury Board last year to provide recommendations for the government's action plan for its work as a member of the open government partnership. The key recommendation, which was supported by all commissioners across the country, was to update the Access to Information Act.
In the fall of 2011, I hosted the 7th International Conference of Information Commissioners in collaboration with the Canadian Bar Association. This was the first time that the conference was held in Canada. This event brought together more than 250 participants, including 36 international, provincial and territorial commissioners. The conference culminated in the release of a joint resolution signed by commissioners of 23 countries, calling on governments to enshrine the right to information in national laws.
On the key result area of an exceptional workplace, we focused on developing an integrated human resources plan and modernizing the corporate governance of the office with the leading initiative of modernizing our IM/IT systems. This five-year strategy started in 2009 and is slated to finish in 2013-14. So far we are on time, on target and on budget.
This is but a snapshot of the work conducted at the OIC during the period of time under review today. As you can see by now, I'm actually very proud of everything we have accomplished. However, as you will see in my upcoming annual report for the year 2012-13, which will be published likely in June, much remains to be done, especially since the modest gains at the system level, which I reported upon in 2011-12, appear to have disappeared. After all, 2013 marks the 30th anniversary of the coming into force of the Access to Information Act, the key driver of democracy, transparency, and accountability. Let's make sure that we actually have cause to celebrate.
You will find in the package that was distributed a number of documents that provide a lot of additional information on the work of the office. I hope these documents will actually be helpful in answering your questions this afternoon.
With that, Mr. Chair, I'm ready to answer your questions.
View John Carmichael Profile
Thank you, Mr. Chair.
Thank you, Commissioner, for your reports today.
Commissioner, in your 2011-12 report you referred to the portfolio approach that you've adopted to bring a more efficient resolution, let's say, to the number of complaints. Over 30% of your inventory involved two institutions, the CBC and the CRA.
I wonder if you could first go a little more in depth in explaining the approach and how it works. Is it a bundling process? Is it consistently people who can work on specific accounts, for lack of a better term? Also, could you provide us an update on these two situations? Are we seeing progress? Is it working? How are you feeling about it?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-04-24 16:07
Let me explain a little bit how I work these files. We're a very small office. Every Friday morning I sit down with the assistant commissioner and the intake director and we go through all the new files. It seems strange for a commissioner to do that, but it gives us a sense of file groupings. We have the case management system, which is a database, and we look at that, but by looking at what's coming in, we actually have a pretty good grasp of groupings. For instance, in a matter of two or three weeks we'll see several complaints in relation to a specific topic. We then assign these files to one investigator, or two, or we keep track of where they are so that they're consistent and they move along at the same pace. Or we'll get one complainant making a large number of complaints to one institution. We'll group those and assign them to one person.
We do these kinds of things as they come in, because we see the trends. For instance, when hot topics come up we'll see an influx of complaints, or, as I was saying in relation to the RCMP, in the course of a short period of time we'll see that there seems to be a problem in the institution because of the types of complaints we're getting.
Depending on what these situations are, we address them differently. We assign them to specific investigators, or I'll keep a closer eye on these files and their progress because of the nature of the topic. If it's something that seems to be wrong administratively in the institution, I'll call the head of the institution and give them a heads up. I find sometimes it hasn't necessarily come to the attention of the head of the institution at that time, so I serve as a heads up. I'll basically phone them and say “Something's not going right in your access shop.” Usually people respond and address it fairly quickly.
We have specific groupings, a special delegation, as I was saying to your colleague, such as national security files. A lot of them are with Library and Archives, CSIS, National Defence, or Foreign Affairs. We have a very small group of people that work on these files. These people are followed; I follow the group of these files and the progress on them.
I'm particularly mindful of those because of the sensitivity of the material. I've been quite concerned that the office has accumulated a large number of them. That's why I have this special project to deal with them, because I don't want those files to linger very long. I think it actually becomes problematic because of the sensitive nature of these files.
View Yvon Godin Profile
Thank you, Mr. Chair.
Ms. Legault, welcome to the committee.
Earlier, you said something that bothered me a bit. It had to do with your responsibilities as commissioner, especially with a government that was elected on the promise of transparency. It seems to me that things should be going better than what we are seeing now. When the rate drops by 10%, it's vital to examine what's happening.
You mentioned earlier that you meet with your colleagues on Friday morning and you go through your files. You said that was something you shouldn't do. I'd like you to explain that practice because it bothers me. I would think the commissioner has more important things to do. The next thing we know you'll be doing the janitor's job.
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-04-24 16:32
This is a personal management style. I am sure that every commissioner has their own management style. On a daily basis, there are 2,000 active files at the Office of the Information Commissioner of Canada. There are 2,000 files in the inventory. I have an excellent memory, so when we receive new files, I have a good idea of what kind of work I need to do. That is very personal. I probably shouldn't be doing that, and leadership experts would probably say that I micromanage too much. That's why I said this. It could be seen as self-criticism. That approach has been working very well for me, and I am very comfortable with it.
View Earl Dreeshen Profile
View Earl Dreeshen Profile
2013-04-24 16:36
Thank you, Mr. Chair, and thank you, Ms. Legault, for being here today.
I remember back in 2009 I was also on this committee. You were here and we talked a lot about report cards, and we talked a lot about the different types of issues that were taking place. Of course, one of the discussions had to do with staff turnover. I would like to kind of draw that out just a little bit.
You want to make sure you have that institutional knowledge, so that it's easy for you when you group all of these different files together, that it's working well. I'm just wondering, when you're talking about your strategic plan, and you talk about how the organization is almost fully staffed...I wonder if you can talk about your staffing situation, plus the concept of the institutional knowledge that actually does exist.
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2013-04-24 16:37
Actually this past year has been quite difficult in terms of staffing because of the cuts in my office. Two years ago, because we had the cost containment measures, I significantly reduced our internal services quite a lot, and we were able to find positions for all the people where we had to cut positions.
This past fiscal year, though...I must be very honest, I wasn't expecting my office to have cuts to its budget, given our financial situation. We had to go through a workforce adjustment process, and because I wanted to protect my employees, I actually kept vacant positions for them; I cut positions in the chiefs and the higher levels in the organization. I didn't cut any investigator positions, but I had vacant investigator positions. In order to secure my employees' employment, I kept those positions open.
That process finished in late January, and we have started a staffing process now. I have eight vacant positions in my investigative functions now. I knew I was going to cut some, and I kept the lower-level positions empty until people had decided what they were going to do. Now we're going to staff those positions
I still try to reallocate some funding to investigations out of the internal services. We have 42 positions now just to do investigations. I'm hoping to increase that a little bit within the allocated budget. I have eight vacant positions, which I have basically staffed with consultants since the end of the fiscal....
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2012-11-22 12:05
Thank you, Mr. Chair.
I'm accompanied today by Ms. Emily McCarthy. She is the Assistant Information Commissioner of Canada. Thank you for asking me to appear before you today. I've been following the committee's work on this matter, as I was notified of the application to the Federal Court that triggered the study before your committee, so I welcome this opportunity to provide information about the Access to Information Act.
Mr. Chair, how access to information rights intersect with parliamentary privilege is a complex matter, and I certainly do not purport to be an expert in the field of constitutional law or parliamentary privilege. Our representations are drawn from my perspective as the independent oversight on disclosure decisions of government institutions that are covered under the Access to Information Act.
As Information Commissioner, I have a statutory duty to investigate any complaint made in relation to requesting or obtaining access to records under the Access to Information Act.
The act contains a number of exemptions and exclusions upon which disclosure may or, in some instances, must be refused. These include exemptions for personal information, for information that could reasonably be expected to threaten the safety of individuals, information that is an account of consultations or deliberations involving government employees, and information protected by solicitor-client privilege.
However, there is not currently an exemption or exclusion in the act addressing explicitly parliamentary privilege.
The act also provides that a request must be responded to within 30 days. This period may be extended for a reasonable period of time to consult other government institutions or third parties in two circumstances.
First, an institution may consult a third party if consultations are necessary to comply with the request. The validity of such extensions, including the reasonableness of the length of time and the necessity of the consultation, is considered on a case-by-case basis by my office. When such consultations are conducted, there is no recourse set out in the act should the institution disagree with the recommendations made by the consulted third party.
Second, a government institution may extend the 30-day response period to consult a third party when the record at issue may contain third party information that is confidential commercial, technical, or financial information or when the disclosure of the information could result in injury to contractual negotiations or the competitive position of a third party. The third party consultation process set out in the act in these circumstances has strict statutory timelines and provides a specific judicial recourse should the institution not agree with the response of the third party to the consultation.
As an aside, it is not readily apparent to me that the type of information that may be protected by parliamentary privilege would qualify as the type of primarily commercial information that is protected under section 20 of the Access to Information Act.
I mention this specifically, Mr. Chair, because this seems to have been the process that was followed in the case with the Office of the Auditor General, but it's really not clear to me how that process was actually appropriate under the act.
Given that the act is silent with respect to parliamentary privilege, its intersection with access to information rights raises a number of pragmatic issues. The list of examples I am providing you with today is certainly not exhaustive.
For instance, in the absence of a specific statutory provision for parliamentary privilege under the act, there is currently no obligation for government institutions to consult Parliament prior to making a disclosure decision.
This means that there is no way for Parliament to know whether information that could be protected under parliamentary privilege is being identified as such or released by government institutions. There is no process for government institutions to determine who has the authority to invoke or wave parliamentary privilege. It appears that, in the few cases Mr. Bosc brought up before this committee during his testimony, representations were made concerning the existence of parliamentary privilege by individuals other than the Speaker of the House.
I am not an expert on parliamentary privilege or parliamentary procedure. That is why all of you here may correct me if I am wrong, but, according to my readings, the Speaker of the House is the only person with the jurisdiction to make a prima facie determination of what constitutes an issue of parliamentary privilege. When he is unable to determine whether the issue is a prima facie parliamentary privilege, that question or decision must be transferred to the House of Commons.
In the face of an assertion of parliamentary privilege, government institutions are faced with a dilemma because there are no specific exemptions or exclusions dealing with parliamentary privilege under the act. However, such a decision affects third parties that submit requests to institutions covered by the act.
If the assertion of parliamentary privilege is the basis for not releasing information to a requester, is the decision to refuse disclosure by a government institution a valid one under the Access to Information Act?
If the assertion of parliamentary privilege is the basis for not releasing information to a requester but the government institution listening to an assertion made by someone who works in the House of Commons or the Senate uses other exemptions or exclusions to withhold the information, notwithstanding that no exemption or exclusion under the act applies directly, what is the impact on requesters' rights when they are provided with, in effect, a false reason or a misleading reason to refuse disclosure?
Would this information have been provided to the requester in the absence of this assertion of parliamentary privilege?
What is the impact on transparency in the process, and further on the ability of my office to effectively review a government decision to withhold information when a false pretence might have been used?
These are only a few of the questions, Mr. Chair, that actually come to mind when one considers some of the instances that have been referred to this committee in its review of this issue. In my view, the best way to protect requesters' rights and to ensure transparency, accountability, and effective oversight would be to amend the act to cover the administrative records under the control of Parliament, while adding a specific exemption to deal with parliamentary privilege.
This amendment should also clarify who has authority to assert the privilege for purposes of the act. Both the Standing Committee on Justice in 1986 and the access to information review task force in 2002 have made this recommendation.
Internationally—and I believe I've provided the committee with a table with a short international benchmarking—two Westminster jurisdictions have actually addressed this issue specifically in their freedom of information legislation. The U.K. legislation applies to Parliament and exempts records if their disclosure would infringe the privileges of Parliament. In Australia, the Freedom of Information Act specifically addresses the question of parliamentary privilege as well.
Within Canada the provinces of Alberta, Prince Edward Island, and Newfoundland and Labrador have an exemption for parliamentary privilege. In addition, other jurisdictions cover, in one form or another, the parliamentary institutions. Quebec and Ontario, for example, cover some specific records.
Thank you, Mr. Chair.
I will now yield the floor to Mr. Drapeau.
I would be happy to answer your questions.
View Jean Crowder Profile
Welcome, committee members, to meeting number 31.
I call vote 40, under Justice. We will now commence debate.
I welcome Madam Legault, the Information Commissioner of Canada, who will present to the committee.
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2012-03-27 11:00
Thank you, Madam Chair.
I want to thank you for inviting me to speak about the main estimates of the Office of the Information Commissioner of Canada, this morning. I am accompanied by Layla Michaud, Interim Director General of Corporate Services.
Your invitation provides me with a timely opportunity to talk to you about some of our key achievements, challenges and priorities as I begin the third year of my mandate in June.
As detailed in the documents before you, the salary and operating budget for my office in 2012-13 is approximately $10.348 million, excluding employee benefit plans. I have 106 full-time equivalents. Close to 75% of my budget is allocated to salaries. Of the remaining 25% for operating and maintenance costs, a third relates to fixed costs.
Madam Chair, I can assure you that since I became commissioner, I have worked to do better with less across all of our activities.
On the program side, we started three years ago to implement a new way of doing business. We have been guided on this path by the clear direction and focus of the strategic plan we adopted at the onset of my mandate. I'm encouraged with the results thus far.
We made a substantial dent in the inventory of complaints that had built up over the years. We reduced it from 2,500 at the end of 2008-09 to 1,800 by the end of this fiscal year. From 1,600 cases that were there from pre-2008, this number is now down to 61.
There has been a substantial reduction in administrative complaints in our year-end inventory.
Six months ago, we started implementing a new strategy for more complex investigations dealing with highly sensitive national security issues. As a result, we expect to close approximately 100 cases. This represents a 33% increase over last year.
This past year, I have strengthened our legal capacity to assist with formal investigations and litigation. This has also reduced outsourcing costs for legal expertise and professional services. These are outcomes that we expected, and we worked hard to achieve them. They confirm that our business model is sound and that we are heading in the right direction.
Our internal services have been key to facilitating these operational successes. The guidance and assurance provided by our internal audit function, as well as the development of a new case management system, have been instrumental in improving our overall performance.
However, more work needs to be done. In completing the tasks at hand, we face significant risks and challenges.
We must further refine our strategies to deal with a higher percentage of more complex refusal complaints. These have steadily increased from 73% of the inventory at the end of 2008-09 to 88% currently. Approximately 55% can be characterized as follows: 385 deal with national security issues; 253 involve voluminous and highly technical Canada Revenue Agency files; and the others result from the Federal Accountability Act, extending coverage to the Canadian Broadcasting Corporation. We still have 253 cases in our inventory, 135 of which pertain to section 68.1, which has been studied previously by this committee.
The higher percentage of refusal complaints increases the likelihood of time-consuming and formal processes. They also increase the risk of costly litigation.
Treasury Board statistics for 2010-11, which have just recently been published, indicate an increase of 18% in the number of access requests received by institutions in the last year. Historically, out of this number, 5% to 6% of requests generate complaints to my office. If this trend materializes, we could be faced with an influx of 2,000 to 2,500 new complaints this coming fiscal year.
However, I must say, Madam Chair, that this year the level of complaints has been declining. It has not been increasing. So far this year we are looking at about 1,500.
Moreover, several of the top ten institutions to receive access requests, according to the Treasury Board statistics, are also among the top ten institutions generating complaints; hence, a potential risk in terms of increased workload. A very good example is the Canada Revenue Agency, which apparently has had an increase of 44% in its access to information requests. According to Treasury Board statistics, it is one of the main institutions generating complaints to my office.
This risk is compounded by the fact that institutions, in times of restraint, tend to cut in their internal services, including access to information and privacy programs. The risks from such cuts could include failure to meet legal requirements, declining performance, and an increase in complaints to my office. This is worrisome to the extent that it could adversely affect Canadians' fundamental right of access.
Human resources also presents another significant element of risk. As a small organization, my office is disproportionately impacted by workforce characteristics. For example, according to our statistics, 31% of our investigative workforce will reach pension eligibility within the next three years. Three staff members have already retired this year.
We also face uncertainty owing to the fact that we have to relocate our offices in 2013. Preliminary estimates from Public Works and Government Services Canada show that the cost could be as high as $3 million. We have yet to secure a source of funding. Relocating also entails other risks in terms of sustained productivity and human resources retention.
Given these risks and challenges, here are some of my main priorities for 2012-13.
First, in terms of governance, there are two key positions that I must stabilize within my office. A selection process is already under way to appoint an assistant commissioner, who will be responsible for all investigations and complaints resolution. The process has been initiated with the Privy Council Office. I must also staff on a permanent basis the position of director general of corporate services.
On the program side, I will continue to streamline our operations with a view to increasing the effectiveness and timeliness of our investigations. Regarding administrative complaints, my goal is to move closer to our target of 85% of cases completed within 90 days. The quick resolution of administrative complaints allows us to work more intensely or quickly to resolve new refusal cases.
Regarding refusal cases, my goal is to complete priority cases within six months. We will continue with our strategy for national security cases, building on the successes so far. In the spirit of results-based management, I will establish processes and service standards for all types of investigations. We have done so for administrative complaints. We now have to move to our refusal complaints.
With respect to internal services, implementation of talent management is a key priority for corporate memory purposes. Our talent management program will help us develop, attract, and retain talent, thereby mitigating some of our human resources risks. It will also contribute to our strategic objective of creating and maintaining a workplace of choice.
We will continue to streamline internal services to minimize risks and improve service delivery. For example, we are currently exploring different shared services opportunities with other institutions, including agents of Parliament. As a start, we have undertaken discussions to procure compensation services and staffing monitoring from the shared services unit at Public Works and Government Services Canada.
In closing, I thank you for your continued interest and support. I also wish to acknowledge the unabated commitment and dedication of my staff in this process of continuous improvement, as we strive to deliver exemplary service to Canadians.
Thank you, Madam Chair. I will be pleased to answer your questions.
View Charlie Angus Profile
Thank you, Madam Chair.
Thank you, Madam Legault, for once again coming to our committee. You know that we have immense respect for you on all sides of the table, and that you perform a vital function for ensuring accountability and ensuring that Canadians' right to have access to information is responded to by government departments.
I'd like to talk with you about a couple of the subjects you raised. I'm looking at vote 40 in the estimates, and I see that there will be a net cut of $267,000 to program expenditures from the $10.3 million that you described.
Now, with regard to those dollars that are being cut, are they being targeted on technological infrastructure? How will that affect your need to actually be modernizing your capacity to handle complaints? What are you going to do with that cut there?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2012-03-27 11:11
Well, the funding was received in 2009-10 for IM/IT strategy. We are starting our fourth year of implementation of the strategy. We are on time and on target. It was a normal decrease in the actual funding for this year.
Obviously it has an impact on our operating costs, but this is something that we had planned for. The development is under way and is functioning quite well. This year we actually rolled out our new case management system as part of the strategy.
View Charlie Angus Profile
Thank you.
I was reading the report on plans and priorities for 2011-12, and it talked about the increasingly complex nature of investigation and litigation. We have cases like the CBC—on section 68.1—going up through the federal courts, and we've had ministers taking issues to court.
What is the added expense that you're dealing with now in terms of the complexity of litigation, how does that factor into your overall budget, and how are you offsetting it in terms of moving dollars around in your other files?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2012-03-27 11:12
The inventory right now in terms of complex cases is 88%. The ability to pursue matters in courts under the legislation is related to these refusal cases. Normally, on administrative cases, although there have been some examples, these do not go to court.
What happens is that we used to have about a 50-50 inventory; we're now at 88%, as we speak. This means that most of these cases are more difficult, more complex. The possibility of these cases going to court is unpredictable as the files unfold.
We are doing better, actually, in terms of the outsourcing of legal costs, because this year I've increased the legal capacity. We have now, as of this year, internal litigation capacity. We are intervening more, in some cases, than we normally would have, so we are having a voice in terms of third party interventions. We're also having a heightened capacity to manage our litigation costs. In fact, our outsourcing of professional services for litigation has decreased this year because of that. We've shifted a little bit on the program.
So far we're managing it. Last year we had to get $400,000 in emergency funding because we had complex cases and litigation. There is an element of uncertainty to that aspect of things. This year we have managed it without needing to seek additional funding. As I said, this increased internal litigation capacity seems to make quite a good difference in managing that uncertainty.
View Charlie Angus Profile
I find that a very interesting approach. It seems to be counterintuitive to some of the common wisdom of the day, which is that you cut the civil service and then you hire staff when you need them. I saw how Mike Harris's common sense revolution went through numerous departments and then ended up actually having to hire back the civil servants, now that they were independent consultants, at a higher rate.
You're telling us that by bringing your own in-house capacity, you're reducing costs and you're able to manage the case files better? Is that...? Do you think that's a model that might work in other departments?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2012-03-27 11:14
We're constantly looking at ways to gain efficiencies and to deal with the risk of unpredictability that we are facing.
Another example, as well, is that I have a lawyer who is actually in charge of the national security files, and this lawyer is working very closely with the investigators who have special delegation files. What I'm finding is that it's actually working better. The investigators are better counselled in a more timely manner.
It's early, we started six months ago. But what I'm seeing now, I'm very pleased with the way the files are handled and I'm very pleased with the ongoing support that the investigators are getting on these files. We've developed more templates, it's going faster, and I think the work is moving faster on these files. By shifting some of the way the teams are organized within the program, I think it is generating efficiencies and I think that will continue.
The investigative function is still not where I would like it to be, so I'm constantly trying to see how I can make it more efficient to deal with the change in our inventory, in our caseload. What we've done this year seems to have worked, and so we'll see in the next fiscal how that is going to unfold. It's a little bit too early to tell, but certainly this year it seems to have worked.
View Charlie Angus Profile
Thank you.
Finally, we have two bills before the House that could have huge implications for Canadian privacy rights: the update to the PIPEDA, Bill C-12; and then Bill C-30, Minister Vic Toews' snooping law.
Have you done any analysis of the potential impact on your department in terms of information?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2012-03-27 11:16
No, I have not. Madame Stoddart, the Privacy Commissioner, is very much on top of those files in terms of input from the privacy side.
View Dean Del Mastro Profile
Cons. Ind. (ON)
Thank you very much, Madam Chairman.
Thank you, Commissioner, for attending today and for your presentation. I have a couple of questions for you.
I noted in the main estimates, the Office of the Information Commissioner actually has a small decrease in its overall estimates from the previous year. It looks to be about 2.5%. According to the Library of Parliament, it's made up of a decrease in “other operating costs”.
Can you describe for me a little bit about what the “other operating costs” are? Where did you find those savings?
Suzanne Legault
View Suzanne Legault Profile
Suzanne Legault
2012-03-27 11:17
It's really mostly the IM/IT strategy and this was, as I indicated, already planned when we got the funding. There was a decrease in funding over a five-year period, and we're entering the fourth year, so that's totally consistent with what we had projected. That's essentially the big chunk of that.
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