Open letter to:
Honourable Greg Selinger,
Minister of Finance,
c/o Budget Consultations
Room 103, Legislative Building
450 Broadway,
Winnipeg, M
BR3C 0V8

Jon Singleton,
Provincial Auditor,
500-330 Portage Ave.
Winnipeg, MB
R3C 0C4

March 21, 2000

Dear Sirs:

We wish to draw your attention to an urgent and growing budgetary crisis in the Provincial Ombudsman's Office which is preventing it from fulfilling its statutory duty to investigate complaints in a timely and proper manner regarding denials of access to Manitoba government information and violations of privacy.

On February 29, 2000 the Provincial Ombudsman, Barry Tuckett, made a statement on CBC Radio. He spoke of being "swamped" and "bogged down" and "challenged" because his files of complaints were "piling up." (the full transcript of the statement is available on the CBC Winnipeg web site at: www.winnipeg.cbc.ca)

He also expressed the problem quantitatively when he estimated that the Ombudsman's Office had received "half as many complaints in the first two months of this year as it had in all of 1999". If this trend continues, it will amount to an increase of 300% in his office's workload under the access and privacy provisions of the Freedom of Information and Protection of Privacy Act (FIPPA).

According to the Ombudsman, the current backlog in complaint investigations is six months which is double the 90 day mandatory time limit for investigation required by Section 65 of FIPPA.

On January 29, 2000 the Government of Manitoba announced in the Manitoba Gazette that FIPPA will be extended in application from the provincial government to educational, health care and local government bodies, effective April 3, 2000. The Ombudsman's Office will be responsible for investigating complaints about denial of access and violations of privacy from these bodies. The backlog queue can only grow and grow because there are more than 500 such bodies.

Even more disturbing than the potential backlog is the ombudsman's analysis of the causes for the increasing complaint load. Mr. Tuckett attributed the backlog as partly "due to new legislation" (FIPPA was proclaimed in May, 1998) but then he went on to say:

"Part of the reason for the high number of complaints is that the government departments still make decisions not to release information on the wrong grounds. Decisions like 'gee this is going to embarrass us, or gee I'm not comfortable about releasing that or geez why are we doing this, its going to take so much time to get these records out, its going to cost us money -- those things still creep in."

If his analysis is correct, the major purpose of the Act as stated in Section 2 ("to allow any person a right of access to records in the custody or under the control of public bodies, subject to limited and specific exceptions set out in this Act") is being subverted.

If one attempts to substantiate the Ombudsman's analysis by examining the public record, there is little supporting evidence. In the 1999/2000 estimates of expenditure for the Ombudsman, this is all the information that is currently given:

************************************************************************************************************

Res No. 1.3 Appropriation No. 7 1999/2000 $1,791,200 1998/99 $1,747,300

(a) Salaries and benefits $1,309,600 $1,169,600

(b) Other expenditures $481,600 $577,700

************************************************************************************************************

There is scant more analytical detail in the retrospective public accounts which breaks down other expenditures into: transportation, communication, supplies and services, other operating and capital.

The Ombudsman's Office is an independent office of the Legislature. The Ombudsman presents his budgetary estimates in camera before the Legislative Management Commission. Unlike government departments, there is no further financial and statistical performance information available for public scrutiny under the estimates review process.

The latest annual report of the Ombudsman on access and privacy is dated 1998 and it was not released until December 8, 1999. Normally, annual reports are required to be tabled three months after the end of the fiscal year. This is a further indicator of the degree to which the Ombudsman's Office is both overwhelmed and unaccountable.

The 1998 annual report does not contain any statistics on backlogs whatsoever nor any overall analysis of the causes for delay. The opening paragraph of the annual report states:

"One hundred and eighteen complaints were received in our office in 1998. Of these, 66 were closed and 52 were carried forward to 1999. Our office also closed 20 cases carried over from 1997, one case carried over from 1996 and one case carried over from 1995."

Although the 1998 annual report presents selected case summaries (22 out of a total of 118 received in 1998, plus two from 1997 and seven from 1999 ( ) ), there is no systematic analysis of the reasons for the increasing number of complaints and long delays. The case summaries are not even dated.

We the undersigned believe that this situation constitutes a budgetary crisis of high priority. In the radio interview the Ombudsman stated that the crisis could be remedied with the hiring of more staff. We believe, however, that the situation requires a performance and value for money audit of the Ombudsman's duties and powers under FIPPA which would examine user satisfaction, efficiency, cost-effectiveness and timeliness.

We also believe that the estimates of the Ombudsman must be examined openly and fully with access to the same level of detailed estimates and performance information that is required of all other departments and non-legislative agencies.

Access to information is a fundamental right of citizens which they need to hold the government to account. In 1997 the New Democratic and Liberal opposition made 132 requests for access to information under FIPPA. The Deloitte Touche audits have also shown how important full and timely disclosure of financial information is to government accountability. Modern information technology allows immense and inexpensive opportunities for your government to establish and maintain the routine disclosure of information.

The Office of the Ombudsman is mandated by FIPPA to independently review the access and privacy performance of the Manitoba Government through complaint investigation, monitoring, evaluation and education. In such a crucial role, it should model openness and vigilance, not itself be the cause of delay, confusion and secrecy.

We therefore request:

1) That the Government provide an immediate increase in funding to the Ombudsman's Office so that he has sufficient resources to deal with the current backlog of complaints within the statutory 90 day time limit;

2) That the Provincial Auditor conduct a performance and value for money audit of the Ombudsman's Office;

3) That the Ombudsman's estimates and annual report be available for public scrutiny under the same standards of openness and timeliness as that of government departments.

Thank you for your consideration.

Respectfully,


Paul Nielson, Manitoba Library Association
Elizabeth Fleming, Provincial Council of Women of Manitoba Inc.
Greg Tramley, Manitoba Association for Rights and Liberties
Peggy Barker, Consumers' Association of Canada - Manitoba
Victor Vrsnik, Canadian Taxpayers Federation - Manitoba

cc
Speaker George Hickes, Chair of the Legislative Management Commission c/o Ms. Patricia Chaychuk, Clerk of the Legislative Assembly Room 237, Legislative Building, 450 Broadway, Winnipeg, MB R3C 0V8

The Honourable Diane McGifford, Minister of Culture and Heritage
Room 118, Legislative Building, 450 Broadway, Winnipeg, MB R3C 0v8

Mr. Barry Tuckett Ombudsman, 750-500 Portage Ave. Winnipeg, MB R3C 3X1