For journalists, academics and other frequent filers of access to information requests, Legault’s success will likely be judged largely on whether she speeds up regular business. Under the act, requests are supposed to be responded to within 30 days, but there’s no penalty for failing to do so, and the information commissioner has no power to order an end to delays. The government claims 57 per cent of access requests are handled within the 30-day limit. But Legault suggests that figure is misleading. Citizenship and Immigration accounts for nearly 40 per cent of all requests and tends to comply quickly. Take out that department’s data, and the rest of the government’s record for timely response would likely plummet. “We want to identify the real picture on delays,” Legault said.
As she takes aim at the worst-performing departments and tries to expose the real extent of lengthy delays, Legault also faces a landmark court challenge to her already limited powers. The case stems from the Harper government’s move to bring many Crown corporations, including the CBC, under the access regime in 2007. Since then, the CBC has refused to release many documents. In late August, Legault ordered disputed files to be turned over to her for review to see if the CBC is properly applying its legal right to hold back certain information about its journalism, creative work, and programming. But CBC not only claims it doesn’t have to release the documents to those requesting them, but also that Legault’s office has no right to look at them. Legault sees that challenge as a serious threat. “The Office of the Information Commissioner is set up to act as an objective, independent, third-party reviewer,” she said. “That is a fundamental tenet of our access-to-information regime in Canada.”
Her legal battle with CBC doesn’t appear to be distracting Legault from pushing ahead on other fronts. “She’s very single-minded,” says David Zussman, a professor of public sector management at the University of Ottawa, who got to know Legault when she took a mid-career break to study under him. Zussman added that she’s always conscious of the need to make her case. “She tends to play around with the question, ‘Is this something I could convince someone is right? ’ ” he says, “rather than just, ‘Is this right?’ ”
The CBC conflict highlights her determination. The dispute came to a head when Legault issued a subpoena ordering the broadcaster to turn over documents related to access requests on everything from the cost of holding a contest for a new Hockey Night in Canada theme song to the way CBC’s coverage of past Olympic games was managed. What might have happened had CBC not taken the dispute to court? Marleau, Legault’s boss before he retired last June, sent a powerful signal during his final days on the job, declaring his intention to march in and seize documents from the Privy Council Office—which led the PCO, the very pinnacle of the bureaucracy, to blink and turn over the sensitive material rather than risk being raided.
The clashes with the PCO and CBC suggest how far the information commissioner’s office might go if the system isn’t somehow opened up. But Legault is relying first on a less overtly combative approach—bring the bad actors to light, expose the dismal overall disclosure record, propose precise solutions, and government will have to shape up.
Or so she contends. But what if, after all her work, federal departments and institutions still refuse to accept her findings and step out of the shadows? Since she has no power to impose change, who will force the issue? “I hope the parliamentary committee will take that on,” Legault says, referring to the House committee on access to information and privacy. It’s the only time in a long interview that the self-described “action-oriented” commissioner lapses, perhaps unavoidably, from brisk pragmatism to something closer to wishful thinking.
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