Imagine our surprise here at Macleans.ca when comments appeared on a post about criticism of the new Information Commissioner, Robert Marleau — comments that appeared to come from Robert Marleau. My first reaction was that this was surprising and fun. My second was that “Marleau” was a hoaxer. My third instinct was to call and find out. That instinct used to be faster to kick in. Anyway, it turns out that the guy on the comment board was Marleau indeed. Before long I was in his office asking him about the criticism he’s faced. Here’s the beginning of a long interview, with more extracts to follow:
PW: Thanks for taking the time to talk to me. I’m sorry you were sorely vexed by my blog postings.
Marleau: I didn’t think what I wrote was so much expressing of vexation as expressing a response.
Q: There’s several ways to come at it. I’ll just put it right to you. You have come under some public criticism from Amir Attaran in the Globe and Mail; from Michel Drapeau in the open letter. They charge, essentially, that you are more concerned with the internal organization of your office than with holding to account a government that doesn’t seem to take access seriously.
A: I would say to both of them that they are misguided in their interpretation of what I have done in the last year. First and foremost there was a requirement for an internal focus. The backlog, which I inherited, was unacceptable. And I have said this publicly to the Canadian Association of Journalists. It hasn’t grown exponentially under me. As a matter of fact, if you look at the last four years the previous commissioner was in place, it’s bigger then: 2700 cases over our 2100. But we’re not going to get into a debate about statistics. The issue is, the status quo for the backlog is unacceptable. And so I’ve introduced a different approach. I want to introduce triage, not of complainants but of complaints. They don’t seem to want to understand the distinction.
I’ll give you an example. If you have someone who’s on death row in the USA and has lawyers acting on his behalf and wants to extract information and has a complaint, versus a series of complaints trying to get at the snow-removal contracts let by Public Service Canada, I think there’s an issue there. An issue of timeliness, fairness, urgency, all that sort of thing. Or if you’re a frequent user of the system, versus a single one-time user of the system who has a real need under, say, a loss of rights, then there are issues there. So the triage system I’m putting in place is trying to bring more efficiency to the resolution of complaints.
You can’t look at triage without looking at the early-resolution mechanism I’ve put in place, which first and foremost is trying to resolve it before it goes into investigation. The two go in tandem. In any case, it only started on June 1, give it a chance. See what happens. But something has to be done. It can’t go on the way it is.
So I say they’re misguided, that they’re peremptory in their judgement. It’s an attempt to deal with an issue that has plagued this office for the last decade or so.
As far as my being a lapdog of the prime minister, or not being the attack dog that the advocacy community wants me to be — for now I’m an ombudsman. And there’s a scale for an ombudsman in my view. There’s a time to be aggressive and there’s a time to be consultative, collaborative and cooperative. I’m supposed to mediate. I can’t be shrill. I just can’t be out there screaming reform and secrecy. Right now I think ATIA needs champions, both in the user community and in government institutions, but it doesn’t need warlords.
There are challenges in the system. And I for one share their (Marleau’s critics’) frustration. This government has a posture on communications and pro-active disclosure which runs counter to the spirit of the statute. But I’m not responsible for the communications policy. Nor am I charged with any authority over how the government of the day communicates with Canadians. I wrote an article in the Globe and Mail at Christmas, joining in John Manley’s report, that a fog over information serves nobody. More pro-active disclosure, the more you communicate to people, hopefully the less access requests there will be, the less complaints to my shop. But those who are waiting for an attack-dog commissioner will have to wait for the outcomes of what I can do because it’s not normally my posture. There’s a time to bite. There’s a time to bark. If all you do is bark, then after a while you don’t hear the dog. I’m not saying you have to wag your tail, but sometimes backing off gives you some results.
Accusations that I’m operating secretly? I mean, I told the parliamentary committee, I told the Canadian Association of Journalists that I would be doing this, that I would do the consultations, the round tables through the Public Policy Forum. I published it on my website. I published the results. I don’t see that as being out of kind from my predecessors, nor do I see it as being a secret kind of approach to reform.
Q: While we’re on that, you had that meeting last week. Did you have some take-aways from it?
A: It was a tremendous meeting, very high-level. Oddly enough we didn’t talk very much about triage. I did not set the agenda. I set the framework. There were three parts: Modernization of the culture; modernization of the administration; modernization of the legislation. And Mr. Attaran attended and he came away better-informed and he made a good contribution at several levels. It was probably the highest-level discussion on the issues facing the ATIA in Canada that I’ve ever seen anywhere. I think people will be impressed with the report. I intend to file my own recommendation to Parliament in the fall in a special report. For me it was a sounding board to get a sense of both what people on the user side, the administrative side — because I know some of the interested activists out there took offense, apparently, that there were public servants in the room. They work with the law every day. There were users, there were administrators, and people in my shop who deal with complaints. And it was a very useful exercise. I’d do it again.
Q: While you’re not barking, complaints are up 80 %. Largely because the ambit of the access regime has increased. There are more places where people can launch access requests and eventually complaints. So 80% is a lot. Take out the CBC, it’s still 40%. What does that say about the day-to-day functioning of the access regime and the government’s attitude?
A: I’ve tried to answer that a couple of times: it’s just a little too soon to be definitive. We don’t have the statistics under this government which will be available in the fall. We have the last set of usage statistics for 2006-2007. It covers part of the Harper regime and part of the Martin regime. We’ll have, this year, the full picture on the full Harper period. Let’s take the CBC out of it, let’s say they’re up 40%. Part of it is attributable to the fact that before, complainants had a full year to complain. Now they’ve got 60 days. What part of the 40% is attributable to that and an increase in requests, and an increase in complaints for non-compliance from the Harper government, I won’t know until fall.
Anecdotally, it’s taking longer than usual. Anecdotally, a lot of departments are automatically putting lengthy extensions on some of their requests. Like National Defence, 120 days. The Act wasn’t designed for automatic extensions. It’s designed for extensions against a specific request. The report cards I’m doing for the fall, which have been enhanced, will at least uncover some of these practices. Whereas the previous report cards only dealt with deemed refusals, which was essentially delays — you didn’t get a answer within 30 days. And in fact the report cards are a form of systemic investigation.