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Year

2008

Presentation to the Canadian Association of Journalists, National Capital Chapter
Robert Marleau, Information Commissioner of Canada
Ottawa, Ontario
February 27, 2008

[Check against delivery]

Thank you for the introduction and for inviting me to speak to you this morning. This is my first appearance before the Canadian Association of Journalists as Information Commissioner and while I have been looking forward to it, I can’t help but think that as regular and knowledgeable users of the access to information process, you are a tough audience for an Information Commissioner.

I’m going to speak today about some of the issues that have arisen during my first year as Commissioner. I also want to share a few ideas that I hope will stimulate discussion about the future of access to information in Canada.

You as journalists and I as the Information Commissioner share something important in common. We both-as your association’s mission statement puts it-“uphold the public’s right to know.”

As an independent ombudsman, I work to ensure that the government respects your rights as requesters of information. I also promote accountability and transparency in government. As members of the free press, in a free country, you hold the government accountable every day.

Our government is, and should be, watched. Openness and transparency aren’t improvements that get added onto the operations of a government in a free country. They must be part and parcel of it. Those in government must accept scrutiny as part of their jobs. It is precisely because they are under scrutiny and because citizens have the right to know what governments are up to that freethinking democracy works. And they need to be regularly reminded, rudely if necessary, that this is so.

So what are some of the issues that I’ve encountered in my first year on the job? Let me answer that by highlighting a few developments in my own office, which handles complaints about the access to information process, and then touch on some broader, future-oriented ideas.

With the coming into force of the Federal Accountability Act, my first year saw a significant increase in the number of departments and agencies that are now subject to the Access to Information Act. Among this group, for example, are my office and the CBC. This has meant that we’ve had to set up all the machinery required to receive and respond to access to information requests.

I’ve made considerable effort to ensure that my office is working as effectively as possible. I very much want to ensure that my own house is in order so I am in a strong position not only to advise government departments on what they should be doing but also so that my office can respond effectively to the access requests we are now receiving.

I have revamped the organizational structure of the office to ensure that we have the capacity to meet our standards of service to Canadians and to carry out our crucial investigative function. This is of particular importance because the number of complaints we have received so far this year has doubled from last year.

I have obtained additional funding to allow us to meet our new responsibilities and to respond to the increase in complaints. I expect that my efforts will soon bear fruit.

We are also looking at new approaches to our work to help with this unprecedented caseload. Let me give you an example. In the coming months, we will begin pilot testing a triage system to help us set priorities for handling complaints. As with triage in an emergency room, our system will be guided by objective criteria. Our staff will use these criteria to prioritize complaints and get them processed quickly.

What sort of criteria could these be? The urgency of the request could be one criterion. Is the requester, for example, seeking information to bolster his or her case, or a client’s case, in an upcoming trial? The potential impact of the information could be another. Is there a risk to public health or safety or a potential loss of rights at stake? The nature of the complaint and its complexity is another potential criterion. Finally, and this is probably of greatest interest to you, there is the type of complainant. Should a complaint from a parliamentarian or a member of media, for example, be put in a priority queue because of the inherent value of your role in ensuring that federal institutions are accountable for their actions?

On that subject, let me raise another question: Is there something we could be doing to improve service to the media and members of Parliament? As you probably know, your colleagues in the United States are allowed to apply for a fee waiver when making an access request. What can we do in Canada? Let me leave you to ponder that question for a minute. I will return to it.

The purpose of our new triage approach is to allow us to handle complaints as thoroughly as ever but more quickly, which will benefit you as complainants and all Canadians who are consumers of your journalism.

Let me now scan the broader access to information horizon.

In my ombudsman’s role, I have an ongoing responsibility in four areas. The first is, as I mentioned at the beginning of my remarks, to ensure that the rights of requesters such as you are respected according to the terms of the Act. As you know, that’s why my office investigates your complaints.

The other three parts of my ombudsman’s role focus on the public’s right to know. I advocate the benefits of open government. I stand up for the participation of citizens in the democratic process. And, I champion enhanced accountability and transparency in federal institutions.

Lately, all these issues have been the subject of considerable discussion in the media, in the House of Commons and, I am certain, among ordinary Canadians. I, for one, am glad to see this happening, since we all, as I have said, have a vested interest in open and accountable government.

I think we all need to be asking about the state of freedom of information in Canada. Is it regressing? Is government exercising more control over the release of information than it has in the past? This has been alleged to be the case with DND’s new Tiger Team, which reviews the department’s access requests, but how widespread is this? And, are there legitimate and supportable reasons for this extra layer of bureaucracy that are truly in the public’s interest?

As users of the access system, you likely wonder about the various mechanisms federal institutions use to withhold or delay information. Blanket exemptions and time extensions come to mind. Are government agencies using these properly or have they become easy ways to keep information secret? These are understandable questions that we should all seek answers to.

More broadly, I suggest to you that the biggest opportunity to enhance freedom of information in Canada, as it has been for 25 years now, is to change a government culture that is not geared to proactively sharing information. Departments should not be waiting until there is a formal request before disclosing information. The default mode should be more routine and voluntary disclosure.

Too many people in government seem to think that responding to access requests is just an annoying distraction that takes them away from their real work. One consequence of this kind of thinking is that government officials forget that the most important part of information disclosure should be taking place outside of the access to information system. In fact, access to information requests must be extraordinary measures.

The ideal I am aiming for is that all information requests be handled outside the Act. For starters, government agencies should understand that as servants to the public, they should be making information available as a matter of course. This is especially true now that we have the technology to publish so much information on websites. As journalists, you should also be able to get the answers you need by calling someone at a government department-just like that-without filing a request, without paying a fee and, most importantly, without waiting.

I know how crucial a consideration time is for you. After all, what you produce is called “news” for a reason. If you can’t get the information you need easily in the first place and then your access to information request or complaint gets handled after a story has faded from the public attention, the information you seek loses much, if not all, of its news value to you.

I wonder, therefore-to get back to the question of how we can improve the system for certain users-whether there might be a way for you and others, such as members of Parliament, to indicate which complaints you would like to see get priority.

Currently, the priorities are set by internal criteria. The criteria for the triage system for handling complaints I mentioned earlier are examples of these. But there may be reasons-reasons that no one inside my office could guess and which would be, in any case, none of our business-why you might want certain complaints to be handled before others that you have also made.

How could this work? Well, one possible model is the way questions MPs want to ask in Parliament are currently handled. Parliamentarians have the right to ask as many questions as they want but they may only have four on the order paper at once. This forces them to prioritize their questions. And any time one of these questions gets answered room is created for another to be added. There might be some sense to setting up a similar system, whereby journalists and members of Parliament could continue to be able to make as many complaints as they wanted but also put a certain number on an order sheet to be responded to first.

As Information Commissioner, I can only promise to look at such a possibility with regards to complaints to our office. That said, if the idea is workable and can be applied in a fair way, pressure to extend the idea to access to information requests might be brought to bear on the government and the necessary legislative changes brought forward.

Another idea that has come up has been penalties for departments that consistently delay in responding to access requests. I know that some of you are also concerned that departments maybe using fees to cover copying costs as deterrents to access to information requests. Perhaps there is some way to put limits on such additional costs.

These are just some of the issues I have encountered in recent months. They are also issues my office will be seeking input on-from you and from other users of the access to information system.

After 25 years, the Act itself is sound in terms of its concept, structure and balance, but there is work we need to do to modernize it both from the legislative and administrative perspectives. To that end, in June we will be holding a series of roundtables with stakeholders. Details are not finalized yet, but I hope that your organization will participate.

I also hope that your organization will join my Office in participating in the 2008 Canadian Right to Know Week at the end of September. This national event offers an opportunity for anyone interested in promoting freedom of information as a fundamental right to engage in an informed dialogue with Canadians of all ages.

Let me conclude by circling back to the idea I started with-that is, your role in upholding the public’s right to know. The public will rightly insist on scrutiny and accountability as a condition of any attempt to empower the media on their behalf within the access to information system. If, for example, Parliament was to approve changes such as those I hypothetically raised, allowing you to prioritize your complaints or access requests, that empowerment would necessarily have to be linked to a greater responsibility on your part to inform correctly and completely. Let me suggest that standards of prudence and probity, perhaps through a universal code of ethics, would be welcome in this regard.

I see that my time is up. I’ve only been able to talk about a few of the hot topics in the world of access to information, but I hope I have stimulated you to think about these issues.

We live in a world in which “change” has become the buzzword. Effective change needs purpose and there are few purposes as important as the vital role of keeping Canadians informed.

Thank you very much. Now, let’s have some questions.