Thank you, Mr. Bezan.
In that meeting, we had another couple of points of order. We were in a questioning thing, and there was some debate going on. First of all, the chair has the discretion to wait until an appropriate time to hear a point of order, but I felt at the time that the problem we were facing, and that caused you to express your concern by calling for a point of order, actually resolved itself.
But I do understand. The role of the chair is to try to keep the good order in the meeting and to keep it going. I understand your point. I know that you don't do these frivolously, that you've done your homework, and I appreciate that. I will try to be a little more vigilant or clear on my actions.
We also were in a position where we were down to the last dregs of time and trying to be fair to all members to get through, and the chair, maybe in his haste to try to keep the questioning going, probably used his discretion not to your advantage.
But I understand your point and I appreciate it.
Ms. Suzanne Legault (Interim Information Commissioner, Office of the Information Commissioner of Canada):
Thank you, Mr. Chairman.
I'm very thankful for the opportunity to discuss with you in greater detail this year's special report, which provides an assessment of delays and examines the compliance of federal institutions with the Access to Information Act.
The purpose of the report cards is not to chastise institutions. This process is a tool at my disposal to affect greater compliance with the requirements of the act. It allows me to see compliance issues in their full context and to recommend meaningful solutions.
This year's report concludes that, although timeliness is the cornerstone of the act, chronic delays continue to be its Achilles heel. In 2008-09, only 57% of all requests received across the federal government were responded to within 30 days. Almost half of the complaints my office received in the same period dealt with delays, and three out of four of these complaints completed with a finding were resolved with merit.
Clearly, this is not what the legislators had envisioned when they established 30 days as the appropriate length of time to respond to a request. It is now imperative to tackle this issue head-on. This is why the Three-Year Plan I announced last summer focuses on assessing the root causes of delays so that solutions can be found. This year's report cards are the first step under this plan.
To obtain a sound, fact-based assessment, I expanded this year's sample from 10 to 24 institutions. These 24 institutions received 88% of all access requests. The assessment therefore provides a reliable picture of the overall situation. We rated the institutions globally: we assessed not only their statistical compliance with statutory timelines but also looked at practices and policies that impact on their performance. For individual institutions, I have made recommendations that are tailored to their unique situations and challenges. In addition, I am making recommendations to the Treasury Board Secretariat as the central agency responsible for the administration of the Act.
With the evidence collected during the process, we have confirmed the continued presence of system-wide issues that we identified last year. These include: lack of leadership; inappropriate use of time extensions; time-consuming consultations; insufficient resources; and deficiencies in records management.
We have also discovered that flawed or ill-enforced delegation orders within institutions may constitute another significant obstacle to timely access to information. A leading cause of delay is the extensive or inappropriate use of time extensions. In fact, institutions' use of time extensions account for 31% of complaints to my office.
I also want to emphasize that frequent and lengthy consultations between institutions represent a major problem. Federal institutions often consult other institutions before determining whether to exempt, exclude, or disclose information.
The time needed to complete the consultation then also depends on the efficiency and goodwill of the institution being consulted, yet only the consulting institution is responsible under the act for completing the request within the statutory timelines. For some institutions, such as Foreign Affairs and International Trade, the Department of Justice, and the Canadian Security Intelligence Service, these mandatory consultations represent more than half of their workload.
Although a persistent issue, there is little known about the impact of these mandatory consultations because there are no statistics or no studies available to assess their impact. I am concerned that this lack of data fails to assign responsibility where it belongs. Despite previous warnings and recommendations, our findings show that little progress has been achieved to remedy delays across the system. Of the 24 institutions assessed this year, 13 performed below average or worse. These poor performers accounted for 27% of the requests made to the federal government in 2008-09, which represents roughly 9,000 requests.
In terms of deemed refusals, nine institutions present rates ranging from 20% to 60%. The average time to complete requests varies between 34 days for Citizenship and Immigration to 163 days for Foreign Affairs and International Trade.
However, there is a silver lining in this year's special report. Two institutions, Citizenship and Immigration and the Department of Justice, achieved an outstanding score due to senior management's ongoing support for a compliance-prone culture. Since last year's assessment, we have also witnessed some very impressive results at the Canada Border Services Agency, the Royal Canadian Mounted Police, and Public Works and Government Services.
These institutions have adopted a strategic approach to their access to information program and have therefore substantially improved service delivery to Canadians. This is proof that the system is not irrevocably broken.
We need to look more closely at the challenges that impede the performance of the institutions that did not perform well. I also believe that the Treasury Board Secretariat must establish strong standards to guide institutions and collect more detailed statistics to adequately monitor and measure institutional compliance. I think these measures are crucial to strengthen institutions' accountability pending legislative reform.
Mr. Chairman, I want to acknowledge the collaboration of the subject institutions and particularly from the access coordinators and their staff in this process.
Before closing, Mr. Chairman, I'd like to clarify my office's activities in relation to recent allegations of political interference.
As I announced on March 2, my office is conducting three priority investigations into complaints we received over specific allegations of political interference with requests made under the Access to Information Act. My objective is to conclude these investigations promptly.
In addition to these investigations, my office will undertake a systemic investigation into delays and time extensions, as announced in the three-year plan published last July. The scope and focus of this systemic investigation will be expanded to examine whether there is interference, political or otherwise, in the processing of access requests and whether this is a cause of delay or it unduly restricts disclosure under the act. My goal is to complete that investigation within 18 months.
Thank you, Mr. Chairman.
We are now ready to answer your questions.
Ms. Suzanne Legault:
The reason I mentioned the delegation of authority in the special report this year is that there were these few instances where we received testimony of such occurrences as part of our research in doing the report cards. At this stage, I do not have any documentary evidence, aside from the testimonial evidence we gathered through the special report, but I was sufficiently concerned such that it's going to be part of the systemic investigation.
As a matter of information, I can tell you that as far as the Canadian Food Inspection Agency is concerned, during the process of the report cards I had personal conversations with the head of that agency, and that practice has stopped. The delegation order has already changed as part of the report cards exercise.
With respect to Natural Resources Canada, we have to meet with them and look into their processes in detail. As you can see from the result of Natural Resources Canada's report cards, there is a lot of improvement that needs to be done in that department.
We'll be working closely with all of the departments that received failing grades.
Ms. Suzanne Legault:
The head of the agency, the minister, is responsible for access to information, and that's delegated through the institution. With this process of report cards this year, we found that the delegation authority documents within each institution vary significantly.
In some institutions, there is full delegation of authority to the access to information coordinator. In some institutions, there are very widespread delegations of authority, so a lot of people in an institution can sign off. In other institutions, there is a very strong vertical line of approval processes all the way up, sometimes to the minister's office. That's the way they are structured. There is nothing in the legislation that says it has to be done one way or another.
The Treasury Board Secretariat has just finalized best practices for delegations of authority, so we'll see whether these get implemented.
In some institutions, such as Natural Resources Canada, we could see that it adds to the delays. In other institutions, like Public Safety, they are telling us that it's not adding to the delays, but we don't know yet.
Ms. Meili Faille (Vaudreuil-Soulanges, BQ):
Thank you, Mr. Chair.
First, I want to ask a question relating to two aspects of your statement.
As I am one of those who fill out access to information requests every week and who probably complain about time extensions, the issue of chronic delays is one of my concerns. I can testify to the fact that we are often able to resolve several requests rather quickly once they have been submitted to the coordinator and once they have been explained in detail.
I wonder however about the way access to information requests are prioritized. Currently, the departmental coordinator is the person deciding which requests will be dealt with and in which order. There are no very specific rules, guidelines or legal framework. The concern we have and that many professionals have when they put access to information requests is related to the way one can, in the public interest, obtain information to clarify situations, point to mistakes or poor management, or even explore an issue in depth when a problem appears.
I would like you to clarify this. You referred to leadership. Some officers, perhaps due to a lack of training, tell us that non-controversial requests for information seem to be dealt with more quickly than others. However, about the way the requests are prioritized, there does not seem to be any specific framework or precise system. Have you looked at how those decisions are made in the various institutions?
Ms. Suzanne Legault:
I will try to answer this question, Mr. Chair.
From 2005 to 2008, the Information Commissioner carried out an investigation after having received a complaint from the Book and Periodical Council. After this investigation, we concluded that some departments were prioritizing complaints considered highly visible or sensitive--a red or amber light. There were several levels of priority. We were able to establish that there was no specific or negative priority given to the media but that there was indeed some priority given to other groups, among them parliamentarians. Our recommendation was that even if, for communication purposes, the institutions have to identify the requests, they have to make sure that this would not lead to additional delays.
In a follow-up to this investigation that we did last year, we found that only Health Canada stated that there were still some additional delays related to the identification of some requests. This year, through those report cards, Health Canada stated emphatically that there have been no additional delays anymore since November 2009.
I hope this answers your question.
Mr. Bill Siksay (Burnaby—Douglas, NDP):
Thank you, Chair.
Welcome back, Commissioner. It's good to have you here. Thank you for the work you've done on these report cards.
I want to come back to Ms. Foote's line of questioning around the delays in ministers' offices. I particularly want to ask you about your report with regard to CIDA. It goes back to this issue about whether the minister's office was approving the release of documents. Clearly, the language in your report does say that in the case of CIDA, “All but the most basic disclosure packages are sent to the minister's office”, and it says “for approval”.
So I think we need to clarify if it's just for information only, if there is some kind of process happening in the minister's office, and what you meant by “for approval”.
Ms. Suzanne Legault:
What we know for sure at CIDA is that it does create additional delays. What I don't know is whether it has any impact on the amount of disclosure that comes out of it.
This is the same thing for other institutions, which I'll tell you have very long lists within the institutions, with senior levels of bureaucrats. On whether it leads to longer delays, some have told us yes and some have told us no. On whether it leads to a difference in the disclosure that comes out, some have told us yes and some have told us no in terms of the senior bureaucrats.
That's why this is clearly something that has to be looked at as part of a systemic investigation, Mr. Chairman, because the information was given to us orally. We did not verify it. I did not go through the processing files. I do not have that information. I have sufficient concerns to mention it because we found this in more than one institution. For some of the institutions where we found this, there are long delays. Therefore, this is something that we really need to look at.
The Treasury Board Secretariat, on our recommendation following the CNA investigation, did issue best practices for delegation of authorities. If those are not out publicly, they are supposed to be out today or the next day. I do have a copy of them. They have been issued and hopefully that will put some decorum into this delegations of authority.
Ms. Suzanne Legault:
One of the key components of success in transparency is definitely a strong commitment to transparency from the minister and the senior bureaucrats in each institution.
The Department of Foreign Affairs and International Trade obviously has a particularly difficult situation with the types of information they're holding, but in my view, they are significantly under-resourced to actually respond to the workload they have, not only with regard to requests but also with regard to their consultations. The concern I have with this department in particular is that they have almost a central agency role because they receive these mandatory consultations.
Most institutions that we have surveyed this year complain about the length of the consultations with the Department of Foreign Affairs, so it is a red alert because of these factors, but also because their performance, which was already given an “F” last year, has declined so significantly that I really wanted to alert the system that this is something that needs to be looked at. Because it really does have a systemic effect across the system.
If we're going to look at one thing, and if one thing is going to be fixed in this fiscal year, I would suggest that DFAIT has to be looked at as a priority.
Ms. Suzanne Legault:
That's true, Mr. Chairman.
One of the things we highlighted in the special report is the fact that the statistics from the Treasury Board Secretariat need to be looked at somewhat in the context of Citizenship and Immigration Canada.
Citizenship and Immigration Canada receives 14,000 of those 34,000 requests every year. They have fairly simple types of requests that deal with personal information, so they're easily exempted and easily processed. In fact, that's reflected in their performance. Their average response time is 34 days, so 14,000 out of the 34,000 get a responded to in 34 days by CIC, so--
Mr. Pierre Poilievre:
Right, I appreciate that. But because now we are wandering quite far from the question, if you're going to put into context some of the departments that have an easier process of response, then I will counter that by pointing out the obvious fact that there are departments that are going to have, necessarily, difficulties in responding.
Foreign Affairs often has to get approval from foreign governments because information is jointly proprietary. Therefore, that would bring the average down.
There are also access requests that are broadly written in a way that makes it difficult for any department to produce a comprehensive response. For example, someone might ask for all of the internal e-mails on the ecoENERGY program. Well, what about the week when 20 public servants were trying to arrange a meeting and they exchanged 75 e-mails in determining the time, the place, the location, and agenda of that meeting. All of those e-mails have to be considered for potential release, and none of them is really of any interest to the questioner.
So in those instances, there's a whole complication that has literally nothing to do with the desire to disclose, but has an impact on the time it takes to do so. If you're going to give examples of how the average might be improved by one particular department, I would like to point out there are factors that would cause the average to be extended. I would say that of 34,000 requests, if 88% of them get a response within 120 days, I think we're doing very well.
I want to compare that, though, with past years. For the last year for which you have comparable data, how does that 88% score compare?
Ms. Suzanne Legault:
Mr. Chairman, what I do see from the statistics from 2002 is that the percentage of requests responded to within 30 days was 69% in 2002. What we have seen steadily over the years since 2002 is that there's no specific larger gap or larger change, except that steadily since 2002 the number has come down, to 57%. So we have had a decrease of 12% in the number of requests responded to within 30 days and I do have concerns about that in terms of performance.
The other factor that I think is a focus of the report is the extension factor and whether or not the extensions are taken appropriately under the legislation. If you look at the same statistics from 2002 to now, you will see that they're only disaggregated between those below 30 days and those above 30 days. Those are strictly the extensions that are taken, which are a large focus of the report cards.
What we see is that the amount of extensions that are for more than 30 days, for a search through a large volume of records, which is one of the exemptions that can be taken, has gone from 58% to 70% year over year since 2002. Again, it's a steady increase of time. For consultations, they've gone from 40% in 2002 for the ones that are for more than 30 days to 81% in this past year. There has been an increase of over 40% in terms of consultations. Similarly, third-party consultations have gone up by 10%.
This is really where the delays are occurring. Furthermore, as I stated in the report, this generates almost half of the volume of complaints—
Hon. Wayne Easter (Malpeque, Lib.):
Thank you, Mr. Chair.
I want to turn to the Privy Council Office, but before I do, I want to come back to the question of approval versus information, which Mr. Siksay and Ms. Foote were on. On page 11 of your report, where you're taking stock of systemic issues, you mention the concerns over “political interference and delays that may stem from inappropriate or ill-enforced delegation orders”. You go on to talk about how the amount of time it takes for “senior management and ministerial review and approval” generates delays as well.
When Mr. Giorno was here before the committee, he stated that, “No political staff member has received a delegation of authority under the act...”. He said further, “Political staff members do not have authority to be making those decisions, to be interpreting and applying the act”. But increasingly.... One of the reasons we have a motion before this committee to call certain staff, such as Mr. Sparrow and the chief of staff for the Prime Minister, Mr. Giorno, is that increasingly we believe that approval is actually taking place, versus just providing information.
Can you clarify? I know that you turned to Josée at one point. I'm still confused on what is happening within the system. There are two agencies, I believe, and one department that are using an approval process, while others are doing it appropriately. Can you expand on that a little?
Mrs. Kelly Block (Saskatoon—Rosetown—Biggar, CPC):
Thank you very much, Mr. Chair.
Welcome to our witnesses this morning.
Your report card grades for certain departments earned media exposure for those grades this last week—certainly the red alerts--but I want to turn our focus onto another one a little more closely. I'm looking at the RCMP. You gave them a C this year. They received an F in 2005, under the previous Liberal government.
In fact, in your opening remarks you said, “Since last year's assessment, we have also witnessed some very impressive results at the Canada Border Services Agency, the Royal Canadian Mounted Police...”. It goes on. You went on to say, “These institutions have adopted a strategic approach to their access to information...”.
Can you talk about those approaches? Can you talk about why we see such changes and what factors helped to improve their grade?
Ms. Suzanne Legault:
Yes, certainly. In fact, I was astounded by the Canada Border Services Agency's report this year. They have made tremendous strides. They went from a deemed refusal rate of over 60% to 30% and to very low this year—I think it's 4.7%. So there is hope for the Department of Foreign Affairs if they can follow the same curve, because CBSA also has quite complex types of information.
But really, the recipe for success essentially is the leadership at both the ministerial level and with the senior officials of the institution; adequate resources being put into the access to information section of the department; ongoing training, not only of the access professionals but within the institution, so that there is a culture of transparency that gets developed and sustained; and full delegation to the coordinator of access, which we strongly believe in--we don't believe in diffuse delegation orders. We think this is the recipe for success.
By the way, what they've done at the RCMP is that the person in charge of making the decisions is someone who has intricate knowledge of law enforcement, so the person there is not only an expert on access to information but also an expert on the subject matter of the institution. That, we think, is a recipe for success.
The duty to assist a requester is part and parcel of the culture of the access office. The consultation processes are given great support and they are respected. So they respect the consulting institution and the timeliness of it, and they work very hard at having sound information management practices.
That's the recipe for success. When you have all of these practices, usually institutions do very well.
Ms. Meili Faille:
Earlier, the parliamentary secretary made a statement that made me think about one aspect of the issue. At Foreign affairs and International trade, they seem to have the bad habit of closing flies on the basis of section 13 and section 15.
Could you tell me which institutions are used to acting in this manner? Does it mean that departmental people try to clarify in advance what in the requests they would be able to disclose or not?
I have some experience with Public Works and Government Services Canada. When we talk to the coordinators, we are usually able to agree, after a brief negotiation, on what types of information will be disclosed to us and what will not be, and the requests are thus clarified. At Foreign affairs, there seems to be a problem.
Also, I find that the system is not necessarily the same in all departments. In some, everything works well whereas, in others, it does not.
Especially at Foreign Affairs, they use section 13 relating to information obtained on a confidential basis, and section 15 relating to information from foreign governments.
Ms. Suzanne Legault:
Mr. Chair, we have seen that at Foreign Affairs, as well as in the other departments which consult Foreign Affairs, when there are requests relating to section 13 or section 15, that is to say relating to international affairs, practices have developed to avoid the consulting institution having to obtain a deemed refusal. However, that institution is the one having to answer for its performance — if it replies on time. That is why we are very concerned by delays.
In such situations, the Department of Foreign Affairs and International trade as well as other departments will close part of the file, or even the whole file, and will advise requesters that they will disclose what they can and that, for the rest, there will have to be a consultation by the Department of Foreign affairs. If information is disclosed later on, they will get back to those requesters.
These procedures are a source of concern. Especially for us, if we have complaints and that the file is closed, the process becomes somewhat complicated. The issue is that this type of consultation usually takes a lot of time. What we hear from Foreign Affairs is that, when they have to consult foreign governments, those have no compulsion to answer in any given time. So, it is difficult for them to assess the time it will take to provide an answer.
What we do not know is what kind of follow-up there is by Foreign Affairs. Do they call back? Do they tell those foreign governments that they will disclose the information if they do not receive an answer within a given time? We have absolutely no information about this whole process of consultation. That is why we will have to have a closer look. As I said earlier, no statistics or details are available on this. It is not entered in the technological system and therefore we have no data on those consultations.
Mrs. Patricia Davidson (Sarnia—Lambton, CPC):
Thanks very much, Mr. Chair.
Again, Commissioner, thank you for being here with us today.
We've certainly all been looking forward to seeing this report card. It has some very positive things in it and it also has some things in it that need more work. I think everybody recognizes that with access to information, and the strong commitment to that by the government, there certainly is more work to be done. We welcome your report.
We certainly know that, under this government, the Access to Information Act now applies to far more institutions than it did previously. We have discussed that with you several times in the past.
In relation to my colleague's questions, I think you stated that there was a total of roughly 34,000 requests in 2008-09—and that is the report card year—57% of which were dealt with within the 30-day timeframe. In some of the information we've had previously, I note that in 2004-05 we were looking at 24,000, wo we're looking at 10,000 more requests than we were four years ago. I think that volume contributes to some of the issues—certainly not all of them, but to some of the issues of numbers that show the increase in percentages.
We get a lot of comments that this government is slower to respond to access to information requests than others. How would you relate that...? We know that the number for those dealt with within 30 days is slightly lower, but we also know that the number of requests has increased significantly. Do you see any relation in those...? Are the numbers themselves causing some of the issues with the percentages? Or is it all other issues?
Ms. Suzanne Legault:
Mr. Chairman, I think the best way to answer the question--and it's the way we tend to approach it as well--is that it's easier when one looks at each specific institution to see either how they address an increase in volume of requests or how they handle a change of circumstances.
For instance, at DFAIT, one of the key components of their challenge is that their consultation requests are far higher in terms of volume than their actual requests for information. They get about 665 requests themselves, but they have to respond to over 1,000 consultations. I would suggest that probably their level of resourcing has not kept up with this demand.
The Treasury Board Secretariat obliges other departments to consult with the Department of Foreign Affairs, so in a way they have become a sort of central agency in matters of access to information. I would say in looking at that, for instance, that it's a good example of where the increase in workload has probably not been addressed by appropriate resourcing, so there hasn't been a correlation.
If, for instance, you look at another one—was it NRCan?—that has had a large turnover of staff in the last year or so, then you'll see that this will have an impact on its performance.
On the overall increase in the volume of requests, it hasn't gone from 20,000 to 30,000 in a year; it's basically a steady increase year over year. So I don't think that this in itself is a major problem. I think it's best to look at it institution by institution and how their own circumstances are being addressed.
Ms. Judy Foote:
I want to go back to the Canadian Food Inspection Agency as well. You say in your report that, “The delegation of authority was diffuse. All records on topics of great public interest had to be approved by the president prior to release.”
You did say, “to be approved”. I'm assuming that someone within your department spoke with whomever had delegation of authority within CFIA. But then you say that you need to talk to the president of CFIA.
In the report, you reference “all records on topics of great public interest”. Which files, what subject areas, are you specifically referring to there? For instance, does it include the listeriosis and food inspection issues?
Ms. Suzanne Legault:
Mr. Chairman, I was just consulting with Josée because she did the specific interviews, and I don't have all of those details.
During that time when we were doing the report cards, as I mentioned earlier, I had a conversation with the president of the CFIA about this delegation of authority, because I thought this was causing additional delays. In fact that was changed right after this conversation, as we were going through the process of the report cards.
You know, on whether the listeriosis cases or any other cases went to the president because they would have been of high interest, I would say yes, but I don't have this information in front of me, so I'm a little bit uncomfortable, Mr. Chairman, with--
Mr. Pierre Poilievre:
Well, thank you for contributing your insight to my questioning, Mr. Chair. I think I have the best answer I'm going to get to that particular question.
I noticed, though, that you want to remove immigration, CIC, from your overall grading because, you said, it has particular ease in carrying out rapid responses to access to information. You went on to say there are particular difficulties for DFAIT in releasing information promptly because of some of the practical realities of that kind of department.
I'm curious as to why you never thought to remove DFAIT from your overall grading of the aggregate, given that it, too, is an outlier--just on the other side.
There is another committee coming in for one o'clock, so we do have to wind it down. I simply want to note that your predecessor, Commissioner, made the statement that 30 days has become the exception rather than the norm, which I think was prophetic, in that.... He had some other comments.
But you both agreed on one thing and that was the need for leadership among the ministries and the directors to show the culture of transparency. I guess we're going to have to continue to work on it, but I appreciate it very much that you and your team have done the report. I think it was a helpful report for us to continue to monitor. I know that Mr. Poilievre raised the idea of tracking or trending. I think it's going to be very important for us to have an institutional memory.
Now, just for the benefit of the members, here's what's happening in our coming meetings. Next week, we have the Commissioner of Lobbying on Tuesday for the estimates, and on Thursday we have the Ethics Commissioner for the main estimates. The following week, we have the Privacy Commissioner on Tuesday, the 27th, and then the Information Commissioner will be back before us two weeks from today and will be helping us put some meat on the bones for our proactive disclosure discussions and projects. I will have the clerk circulate this information to you, but I wanted you to know at least for preparation purposes that we have lobbying on Tuesday and ethics on Thursday.
For our items on Google's Street View and the draft report, which you have, as well as the issue on order-in-council appointments that Madam Freeman raised, we're going to carry those forward at each meeting, so that should there be any excess time, we will try to deal with them.
Thank you kindly. We're adjourned.