Ms. Suzanne Legault (Information Commissioner, Office of the Information Commissioner of Canada):
Good morning, Mr. Chair. Thank you.
Good morning to all the members.
Good morning. I'm very pleased to appear before you today as the committee starts its work on access to information, privacy, and ethics in this 41st Parliament.
You will find in the package that was distributed to you a number of documents that provide more information about my mandate, the accomplishments and priorities of my office, as well as a report and action plan related to a recent audit of our investigative processes. My opening remarks, unfortunately, are not finished being translated, so we will bring them to the committee a little bit later this afternoon.
Clearly this committee plays a crucial role in holding the government to account. You're vested with the responsibility of ensuring that the Canadian government's transparency agenda fulfills Canadians' needs and expectations for timely disclosure of valuable public sector information. Indeed, timely access to public sector information drives democracy and citizen engagement.
In an era of highly developed and ever-evolving information in communication technologies, it is the fluidity of public sector information that is key to competitiveness and socio-economic growth. That being said, it's important to remember that not all government information should be disclosed. As the Supreme Court of Canada stated last year:
||Access to information in the hands of public institutions can increase transparency in government, contribute to an informed public, and enhance an open and democratic society. Some information in the hands of those institutions is, however, entitled to protection in order to prevent the impairment of those very principles and promote good governance.
It's a very delicate balancing act.
One of my responsibilities as Information Commissioner of Canada is to ensure that this right balance is struck. My annual report, tabled in June 2011, highlights the activities of my office in this endeavour.
The core of my mandate is to investigate complaints under the Access to Information Act. I am proud to report that we completed more than 2,000 cases for a second consecutive year.
We reduced by 8% the average time needed to complete investigations, and we further decreased our inventory at year-end by 11%. This success is due to a combination of efficiency gains, agile case management and collaboration with institutions. Overall, we can count on institutions' collaboration in resolving issues and implementing recommendations.
However, to deal with more complicated problems of non-compliance, I issued last year seven reports of findings with formal recommendations to heads of institutions. After the reports had been issued, three of these cases were ultimately resolved and the recommendations implemented. The four remaining cases are now before the courts.
I bring forward or intervene in legal proceedings when important principles of access legislation must be defended or clarified. This is the case with proceedings involving the Canadian Broadcasting Corporation and Canada Post Corporation.
To maximize compliance with the act, we must address the root causes of widespread or recurrent issues that adversely impact the timeliness and quantity of information disclosed. I take a systemic approach to assessing and investigating institutions' compliance. My goal is always to provide institutions, central agencies, and Parliament a thorough, fact-based diagnostic with specific and tailored solutions to guide efforts for improvements.
Last year, we implemented year two of our three-year plan for report cards and systemic investigations. The exercise included the assessment of a group of crown corporations and agents of Parliament that had recently come under the act. We followed up with 13 institutions that had performed poorly in previous assessments. Based on the data collected, we also launched a systemic investigation into the sources of delays, particularly mandatory consultations.
We are also investigating allegations of interference with the access to information process at Public Works and Government Services Canada.
In the current context of fiscal restraint, all institutions must seek more efficient ways to serve Canadians. This is why, upon taking office, I undertook a strategic planning process with my staff and key stakeholders to determine priorities and chart a roadmap for the first years of my term.
This plan will help us achieve significant outcomes in three key areas: exemplary service delivery; a well-governed workplace of choice; and a leading access to information regime.
To provide exemplary service, we will continue to refine our case management strategies while developing a comprehensive talent management framework. In this endeavour, we will build on the results from the audit of our investigative processes.
Mr. Chair, that is what I did last year as part of our internal auditing, in the wake of the incidents within the Office of the Public Sector Integrity Commissioner.
I commissioned an audit of my investigative function at the OIC, and I made sure that the criteria that the OAG had used to do its audit of the Integrity Commissioner's office was incorporated into the audit we conducted.
This morning, as part of the documents before you, I've tabled the results of this audit, which basically show that our investigative function conforms with our legislation. It made some recommendations, which we plan to incorporate into our action plan this fall.
Mr. Chairman, you can count on my continued support and advice to foster a leading access regime. I applaud the Canadian government for its commitment in the Speech from the Throne to ensuring that citizens, the private sector, and other partners have improved access to the workings of government through open data, open information, and open dialogue.
Minister Clement has taken the helm of the open government initiative, which notably includes an open information component that promises to take access to information closer to the digital age. I also welcome Minister Baird's commitment this week to having Canada join the multinational open government partnership. We will follow these government initiatives with great interest. In my view, they are key to embedding a culture of openness in federal institutions.
However, an open government initiative and a commitment to transparency must include a willingness to improve the efficiency of our access to information regime. In this area much work remains to be done. As reflected in Treasury Board statistics, over the past ten years there has been a steady decline in the timeliness and disclosure of information by federal institutions.
Current needs and expectations of Canadians require that we reverse this declining trend in timeliness and disclosure. I've committed to using all the powers and tools at my disposal to influence this outcome, starting with effective and timely investigations of complaints.
Mr. Chair, next year will mark the 30th anniversary of the Access to Information Act. I submit that the way forward must include the review and modernization of the act to bring our regime up to par with the most progressive international models. In preparation for this event, I have started an in-depth review of international benchmarking of our legislation to be in a position to advise Parliament of necessary amendments to the act.
To provide information about our work, I will be hosting the International Conference of Information Commissioners, which will be held in Canada for the first time, in collaboration with the Canadian Bar Association from October 3 to 5.
This forum will provide an excellent opportunity for commissioners, practitioners and advocates to exchange ideas for the advancement of access to information principles.
I am very excited to host this important event here in Ottawa. I invite you all to join the discussions, as we have an agreement with the Canadian Bar Association to allow all the committee members to attend the conference and some of the presentations.
In closing, I would like to acknowledge the hard work and unwavering dedication of my staff, to whom I owe much of our accomplishments.
I urge this committee to continue to advocate for more open government, for more timely and greater access to information.
Mr. Chair, I am now ready to answer any questions the members may have.
Ms. Suzanne Legault:
Well, we're making some progress, but there is still a lot more work to be done, in my view.
It used to be that 50% of the complaints that would come in would be administrative complaints and 50% would be the more complex cases. Also, when I first arrived, we had about 1,600 cases that were very old. Out of the really old inventory, I now have about 99 left as of this morning. So we've really done a lot of work there. In terms of administrative files, I now carry over, as of today, only 14% of my inventory. So we've become a lot more effective at dealing with these simpler cases.
Where we have to do a lot more work is on the complex cases. What I've been doing this fall, and since the summer, is undertaking new strategies to deal with some key chunks of cases. For instance, I have over 300 cases with the Canada Revenue Agency, and we've been working with them diligently to try to become more efficient at dealing with these cases. They have few complainants as well. So we try to broker this to maximize the efficiency of the investigations. It was very effective the last fiscal year, and I'm going to continue that.
I also have in excess of 300 cases that we refer to as special delegation cases, which deal with national security and international relations. They're very difficult to deal with. As you can imagine, they're very sensitive files and I only have eight investigators who can look at those files. In my legislation, the number of folks who can do that is limited.
So what we're doing now is developing a strategy for these national security cases. I have a lawyer specifically dedicated to that, because these cases are more complex. We're going to train these folks better. We're going to have a more streamlined approach. We're going to be more formalized with the institutions as well, and hopefully we will start to move a lot faster.
It's the same thing with the priority files. I have about 100 cases out of 2,000 that are priority files. I have just hired a new lawyer, who is also going to be leading that group.
So these are two big pilot projects that I'm going to start in order to deal with the really complex cases, because dealing with those complex cases, to be very honest with you, generally still takes over a year, although we've made some headway and have reduced the timeline by about 8%. So in my view, there is still a long way to go to being where I would like to be, and we still have a large inventory. We've reduced the inventory of our cases that carry over from 2,500 to 1,800 at the beginning of this fiscal year. So we've reduced them by 700 in two years, which is significant. But I want to end up having about 700 carrying over, which would be a more manageable amount.
Those are the kinds of things we're doing. Aside from that, we also develop different strategies with various institutions and so on, depending on the types of cases we have.
CBC, of course, has over 300 cases as well. There are 194 on hold because of litigation, but I have dedicated staff for these cases as well.
Ms. Suzanne Legault:
As I indicated, Mr. Chair, after the events with the Integrity Commissioner's office, given that we were going through audits in any event, I decided to do an audit of our investigative function. I figured that it would be a really good idea for this committee to have some reassurance from an external body that our investigative function was respecting our legislation and that it would be a measure of accountability to this committee, while at the same time be an audit that would be useful for us. So that's what we did.
Essentially there were some uniformity issues within the office in terms of documented events and investigative plans. We have some cases that are fairly simple and some that are more complex. Last year we brought in some new investigators so we needed to make sure that we had a better, more streamlined approach. That's what we're going to do.
One area I'm keen on is priority cases. I have some priority cases that are taking way too long. So how do I make sure I can put more emphasis on those out of a roster of 2,000 cases? We're going to try another pilot project, as I explained to your colleague earlier, which will be headed by a lawyer. I'm doing that because these are complex cases and by having a lawyer supervise the investigators, we can address the issues and questions of the investigators much more quickly and we can go to the institution and ask for representations that are more targeted more quickly. That's part of the problem I'm seeing in the investigations: there's a lot of delay in the back and forth between institutions. It's fine to do that for a while, but it really has to be more disciplined.
Another concern I have is that sometimes an investigation is not necessarily identified as being a priority when it comes in, but events occur and they should be given priority. I felt that this process was not well oiled in my office. We're going to try to do something with our communications folks so there is more interaction between what's going on in the world outside of my office and how we give priority to our investigations should we need to change that.
To me, systemic issues and how we deal with systemic investigations are key things, because when there are individual complaints, each one is conducted in private. I will get additional disclosure, hopefully, for the complainant and the case will be closed. That's fine. We report on those in our annual report. But when we do systemic investigations or report cards, we actually are able to see systemic problems and make recommendations for changes across the system. In the long run, doing that is more effective in improving the access regime. This work, I think, is extremely important. It always taxes my organization, but I think it's valuable, and in fact a lot of the recommendations we've made over time on the report cards and on the systemic investigations have been implemented or are in the process of being implemented, and those perhaps have more of an impact.
Ms. Suzanne Legault:
It has been unusual this year. I have been travelling a lot more than I normally do, but there seems to be a thirst internationally for the experience of Canada.
I was in Nigeria this summer. They just passed a law and wanted advice on implementation. I was invited there by the Canadian high commissioner in Nigeria.
I also attended the inaugural meeting in Washington of the open government partnership. I'll speak a little bit about that because it's also a symptom of the thirst internationally.
I was also in Mexico for its national transparency week, at the invitation of the commissioners there. Mexico is, in some ways, legislatively and technologically advanced, but they still have a lot to learn on the implementation side. Canada was the guest of honour there this year.
I've also been invited by the Carter Centre to assist in a couple of weeks with China's new regulation.
The open government partnership, which the Canadian government has decided to join, is an excellent initiative. The reason is that there are many countries around the world now who are wanting to explore transparency, not only in legislation but also in proactive disclosure and in implementation. And Canada can really provide a lot of leadership and expertise. The government can do that; the Treasury Board Secretariat has been implementing access to information in Canada for almost 30 years.
My personal view is that there is a worldwide benefit from increasing transparency, because it decreases corruption. There is always a clear and direct link, a correlation, between a reduction in corruption and an increase in transparency.
Canada is now looking to expand its trade with some of these countries. Brazil needs to have a law; they're actually coming to my office in two weeks to get assistance. Honduras, Costa Rica, Chile, Argentina, all of these countries are developing their transparency agendas, and Canada can really assist them. But I think Canada benefits because one wants to conduct trade in and with a country that has low corruption levels. So that is ultimately the benefit to Canadians in providing this assistance.
Mr. Blaine Calkins (Wetaskiwin, CPC):
Thank you, Mr. Chair.
This is my first committee meeting where I've had an opportunity to ask a question and I want to start things off on the right tone.
I have a couple of questions for you. You spoke in your opening remarks on the open government initiative, that three pillars initiative. You spoke very briefly about it. I was hoping you could elaborate on what you see as positives coming out of the three pillars of that open government initiative and what they might be.
Recently it was announced that Public Works is engaged in a 10-year plan to reduce its data collection centres--its legacy systems and so on--from over 300 centres to about 20. I think that's what the report that was commissioned came out and said. I'm just wondering what information you can provide, or what concerns you may have with that centralization of information and centralization of data, and how it will affect your office, if at all. How will it affect how government departments work with each other insofar as protecting the privacy of information of individual citizens, as departments are not supposed to be sharing information with each other and so on?
Last but not least, I'd like some comments from you. My colleague Mr. Butt did address this a little bit. I think we started going down this road. It's about some of the perceptions out there, about the varying standards when it comes to information that's received, depending on the different responses that are given or the different questions that are asked, particularly when it comes to certain organizations.
In particular, I'll ask about the Canadian Broadcasting Corporation. If you can talk about some of the inconsistencies there, some of the problems that might be there, or some of the issues that should be brought to the attention of the committee, I would appreciate that.
Those three questions should use up my five minutes.
Ms. Suzanne Legault:
In terms of the open government initiative, I would say that I think the best people to speak with would be the Treasury Board Secretariat people. They are the lead in this endeavour. I'm on the outside, as you are. I basically see the initiatives that are being announced or the initiatives that are put forward. We're consulted on some of them.
One of the really positive things I see is that we are going to make some data sets available. They're being put into centralized databases. Normally, when databases are put together, departments have to conduct a privacy impact assessment. I'm assuming these things are being conducted by the Treasury Board Secretariat. This is something the Privacy Commissioner would be more aware of. I don't deal with that.
There are some initiatives within the access to information regime that I think are very positive and of which I have just recently been apprised. Among others, for instance, is the move towards full disclosure of access to information requests on a website. That has already started. Also, electronic requests as opposed to letters and electronic payments as opposed to cheques will be allowed. As you know, probably nobody under 30 uses cheques anymore. They just do all their transactions electronically.
These may seem like small things, but I think they will actually improve the efficiency of the access to information regime. In my office, for instance, we do get double or triple requests for access for things that have already been posted on our website, so we don't have to redo them. Basically, the information is already there. So we are seeing some efficiencies with that process.
So limits like that to open government.... I think it's really starting, and we'll see how it evolves. I think it's very positive. I think open government partnership is extremely positive as well, but we'll have to see how it evolves. I think the Treasury Board Secretariat would really be able to explain to the committee their plan going forward, and so on.
In terms of the variety of requests going between institutions, a lot of the exemptions are discretionary. In that context, each institution must always make a judgment call when it gets an access to information request. So it is not impossible that some access requests would generate different results from one institution to another even if the requests were the same. In fact, we do see that quite a bit, particularly from access requesters who are more experienced. They will send the same request to several departments. Of course, the departments may not all have the same information holdings in response to a specific request, so the results may be different.
In terms of performance, it is very uneven across institutions. I've always said that when the head of an institution is really committed to access to information and is committed to presumption in favour of disclosure, we usually see very good performance on access to information as a result.
Ms. Suzanne Legault:
Each of these institutions had really serious performance issues, for different reasons.
In the case of CBC, when they first became subject to the act, they received an enormous amount of requests—over 500. They really did not anticipate getting so many, and it caused a delay and a backlog in their office. The second thing with the CBC is that the provision that applies to CBC in the act says:
||This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative, or programming activities, other than information that relates to its general administration.
In the case that is before the court—and of course I cannot go into detail because it is to be heard in the Federal Court of Appeal on October 18—they're saying that I do not have the right to review the documents that are subject to the request because the act does not apply. I'm saying that I have the right of review in order to determine whether they're applying this provision appropriately. So that's the nature of the case.
That being said, this language seems to come from the Broadcasting Act. It hasn't been tested under access to information. We will have to see. I anticipate that we are probably going to have a lot of litigation over the interpretation of this provision over the years.
Canada Post is a different issue. My view, and I expressed this to the head of Canada Post yesterday, is that they don't have a proper delegation order in the organization. Everything needs to be reviewed at the very high level, which is contrary to Treasury Board Secretariat best practices. The ATIP coordinator should be able to make decisions on the release of information. You can ask the president of Canada Post why he's keeping it this way. I think it's leading to a lot of delay. That being said, again, Canada Post was given a specific provision in the act. It's a crown corporation. What does it mean in the context of a crown corporation?
By the way, each crown corporation has a different makeup. CBC is not funded in the same way as Canada post and not in the same way as VIA Rail. These provisions that apply to them look at their competitive market or their commercial interests. They're all competing in different markets. I used to do antitrust, and each market is going to be different. Snail mail is going to be a market. Courier mail is going to be another market. It's generating a lot of complexity, sir, in the analysis.
Again, there is probably going to be a lot of litigation before we have full understanding of the meaning of these provisions.
Mrs. Karen Shepherd:
Good morning, Mr. Chair and members of the committee.
I am pleased to be here to provide you with an overview of my office and to outline my priorities for 2011-2012. I am joined by René Leblanc, Deputy Commissioner.
My mandate, which comes from the Lobbying Act, is threefold: maintain the registry of lobbyists; raise awareness about the Lobbying Act and the Lobbyists' Code of Conduct; and ensure compliance with the act and the code.
Lobbyists are individuals who are paid or employed to communicate with public office holders to change the state of play concerning government legislation, regulations, or policies or programs, or to try to obtain government grants or contributions. The Lobbying Act recognizes that lobbying is a legitimate activity. The transparency provided by the act is central to enhancing the public's confidence and the integrity of decisions taken by government.
The registry of lobbyists is our primary tool for ensuring the transparency of lobbying activities conducted at the federal level. The registry is the online application that lobbyists use to publicly disclose their lobbying activities. The number of registered lobbyists currently stands at 5,000.
In 2010-11, we streamlined the processing of registrations and managed to decrease the time it takes for lobbyists to register, from an average of 20 days to about three. I believe this improves transparency, as information about federal lobbying activities is now available to the public that much sooner.
Another important aspect of my mandate is to foster awareness of the Lobbying Act. I believe that communicating the rationale and the requirements of the act and the code leads to better compliance.
In 2010-2011, my staff and I met with approximately 1,500 individuals to explain the requirements of the act and the code. These events also provided opportunities to receive feedback on how we are doing and helped inform my recommendations for amendments to the act.
The enforcement of the act and the code is supported by an extensive program of monitoring, verifications, administrative reviews, and investigations. Every year my office verifies several hundred individuals, corporations, and organizations after learning that they have lobbied federal public office holders.
In recent experience, we found that the majority had filed returns in the registry of lobbyists or that registration is not required. Last year my office verified the accuracy of about 400 monthly communication reports. Our experience is that only a small percentage of them contained errors such as incorrect dates or job titles. In some cases, the communication did not require a report, as it was not carried out orally or arranged in advance.
In 2010-11, I initiated 37 administrative reviews and closed 31. These reviews look into suspected or alleged contraventions of the Lobbying Act or the Lobbyists' Code of Conduct that are brought to my attention either through monitoring activities or complaints. Administrative reviews, which are fact-finding processes, result in reports that assist me in determining a suitable means of compliance.
There are four possible outcomes following an administrative review. One is that the allegation is unfounded, in which case I inform the relevant parties and close the file. In another, I may open an investigation if I determine that I have reason to believe it is necessary to ensure compliance with either the act or the code. I may also determine that I have reasonable grounds to refer the matter to the RCMP.
Lastly, I may determine that while the allegation is well founded, the gravity of the transgression is low and does not warrant referring it to the RCMP. In these cases, I am choosing to use alternative compliance measures. These measures include educating the person on the requirements of the act or requesting that a correction be made to the registry of lobbyists. These cases are also subject to further monitoring.
In 2010-11, I opened eight new investigations and closed six. Three of the six that were closed resulted in my finding the lobbyists in breach of the code. As required by the act, I tabled three reports to Parliament detailing my findings and conclusions. For the other three cases, I exercised my authority to cease the investigation, either because the subject matter had been dealt with in previous or impending reports to Parliament or because I considered the evidence to be insufficient.
Since 2008 I have referred six files to the RCMP, as I had reasonable grounds to believe that a person had committed an offence under the Lobbying Act. In all six cases the RCMP informed me that no further action would be taken.
A five-year prohibition on lobbying the federal government after designated public office holders leave office was introduced in the Lobbying Act in 2008.
Former designated public office holders may apply for an exemption from the five-year prohibition. I have the authority to grant one if doing so would not be contrary to the purpose of the act. Since 2008, I have received 17 requests for exemptions and have granted 4.
I would now like to focus on my priorities for this year.
My budget is about $4.6 million, and I currently have 28 employees. Each year nearly a quarter of my budget goes to administer the registry of lobbyists. In 2011-12, my priorities will be to implement service standards for registration processing and to have searching and reporting capabilities that are more effective and easier for clients to use.
Outreach activities represent about 20% of my budget. In 2011-12, I will continue to reach out to various audiences to raise awareness about the act and the code. We have also undertaken a complete overhaul of our website to improve functionality and simplify navigation. The work is expected to be completed by December.
At any given time, my office has a caseload of about 50 files. They range in complexity and include administrative reviews, investigations, and reviews of applications for exemption from the five-year prohibition on lobbying. A quarter of my budget goes towards those enforcement activities. In 2011-12, my priority in this area was originally to develop an automated case management system to facilitate the tracking and reporting of reviews and investigations. Unfortunately, this project has been delayed.
I am proud of all that my office has accomplished in its first three years to advance the transparency of lobbying activities. My objective is to continue to build on our successes to refine and streamline our operations, and to strive to administer the Lobbying Act more effectively.
To that end, I intend to adhere to the spirit and intent of the government's strategic and operating review exercise. I have undertaken a review, and I intend to present the results of this review to this committee and in my next report on plans and priorities.
In closing, I would like to note that the Lobbying Act is eligible for its five-year review. At my December 2010 appearance before this committee, I outlined a number of issues related to the review of the act. In March of this year, I tabled a report containing my recommendations to improve on the current legislation.
Although many aspects of the act are working well, my experience with the legislation leads me to believe that further amendments are necessary to improve transparency and ensure better compliance.
To improve transparency of lobbying activities, I am recommending that the act be amended to increase the number of individuals and activities covered by the act, for example, by removing the provisions regarding the significant part of duties and those requiring that a communication be arranged and advanced.
In terms of enforcement, the act prescribes significant fines and jail terms for offences, yet no charges have been laid. My experience points to the need for a system of administrative monetary penalties that would provide me with penalty options somewhere among my current practices of education, correction, and monitoring for less serious transgressions as well as for the more severe ones, including reports to Parliament and referrals to the RCMP.
It is clear to me that even minor transgressions, such as habitual late filing, may negatively affect the transparency of lobbying activities. In order to deal with such transgressions, the Lobbying Act currently offers no enforcement alternatives. An administrative monetary penalty system could potentially address the lack of flexibility in terms of enforcement options currently provided for in the act.
Not all transgressions have the same gravity. An administrative monetary penalty system would introduce a continuum of progressively more severe sanctions more appropriate to the existing range of possible breaches. Publicizing administrative monetary penalties applied would also serve as a general deterrent to all lobbyists.
I look forward to working with Parliament on the legislative review and other matters.
Mr. Chair, that concludes my remarks. I look forward to answering any questions you and the committee members may have.