Information & Ethics Committee on Feb. 27th, 2018

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Mr. Kent for five minutes.

[Peter Kent, Conservative, Thornhill, ON]

Thank you again, Chair.

You raised the need for adaptation to technology, both in your office and in the departments you'll engage with. Your predecessor said that one of the largest gaps today in terms of the access to information regime is the technology that allows messaging, social media apps, and content by decision-makers, by policy-makers, to not be archived. There's no record. A request by a civil liberties group, by an indigenous group, or by a media group for information on how a policy was developed and ultimately decided confronts this huge gap in terms of the new technology that avoids the records that you would demand access to. I wonder how you think you might address that.

[Caroline Maynard]

I've read so much. This is a concern not just in Canada. It is incredible how everywhere, even if you have the best laws of access, if everybody is doing what they call oral government or digital government decisions, and you cannot access those, you're not going to be progressing towards access. It's a concern that I will have to definitely look into, because I hear it from colleagues and from people I know when we talk about the culture within institutions. People are still talking about be careful, it's ATIP-able. You don't want to put that in writing, and you don't want to put that comment in. I use this more for being careful how you say things.

We are so good at making all the decisions financially in writing, because we have to have a paper trail to show that we were accountable and we made the right decisions for budget cuts and expenses. Why can't we be that good for decisions that affect everybody? This is definitely the duty to report. It's definitely on my radar as a concern that needs to be addressed.

[Peter Kent, Conservative, Thornhill, ON]

I'm not sure what the technological solutions might be, but in terms of the use of messaging or off-line non-archivable and non-transcribable messaging between policy-makers and decision-makers, would you proscribe it? I'm just wondering how you address that, because that culture still exists.

[Caroline Maynard]

Yes.

[Peter Kent, Conservative, Thornhill, ON]

We know that exists.

[Caroline Maynard]

Unfortunately, as the agent of Parliament I will not be making the laws, but I will definitely bring to you and Parliament the concerns that will be raised, and I hopefully will have data when I get into this position, if I am appointed, on how often these types of technology are being used or questioned, and whether or not the obligation to report or to proscribe those devices is something that you may want to consider in the legislation. Again, I believe so much in inspiring people in transparency instead of legislating obligations, but we are living with different technologies, so we have to address those for sure.

[The Chair, Conservative, Bob Zimmer]

You have one minute.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

There was one other concern of the departing commissioner, and this was in the interview last week. She was expressing concern that requests for information are too vaguely defined by the department or the official receiving a request and may be refused. She cited the recent Globe and Mail series, “Unfounded”, with regard to assaults that were missed by police forces and said that in fact these changes may deny media investigations that ultimately benefit our democracy. Can you respond?

[Caroline Maynard]

I agree that any limitations that are added to Bill C-58 or in the act are of concern—anything that could limit or delay access. It's something that I will definitely look into, because now that section 6 has been amended to add that the request cannot be denied or declined without the commissioner's approval, I will be very interested to look at how many cases we are looking into and how often section 6 has been raised as an issue.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Kent.

The last question goes to Ms. Fortier.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chair.

Ms. Maynard, I want to congratulate you on your nomination. I would like to thank you for being here today to answer our questions, which will allow us to make a decision.

I heard about your experience. I became familiar with it in the documents we received.

If you are chosen, how will you leave your mark? How do you want to be remembered, if you are chosen today as the Information Commissioner?

[Caroline Maynard]

I would really like to use the experience I've acquired in the Military Grievances External Review Committee. Initially, this committee received 40% of the grievances, and those were strictly mandatory grievances. We worked very hard to establish the credibility of the committee, and to produce quality reports. We also insisted on the added value of having external independent advice. That is what I would like to bring to the office of the commissioner.

This is why I said that I would like to explore the option of publishing things that go beyond orders; I want to have somewhat of an educational mandate. Let's not forget that the office of the commissioner has been around for 34 years, and offers no glossary or index in which to find the investigations it has conducted and the cases it has processed. As a citizen myself, I have to go through 34 years of annual reports to get an idea of my options if I want to find out whether or not I have the right to ask for something, and whether or not an institution has the right to refuse me access to it. There are some guidelines, but it is very difficult for citizens to do that.

I'll come back to what Mr. Baylis was saying. If the office of the commissioner itself cannot access information, how will it help Canadians understand their rights, and help institutions understand their obligations? This is essential to me.

The commissioner must exhibit neutrality, independence, integrity and consistency. In my opinion, publications are the only way to do so. This way, the institutions would be sure that decisions are made in a consistent manner. Whether it is National Defence, Immigration, Refugees and Citizenship Canada, or the Canada Revenue Agency, the decisions would be applied in the same way across the board.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

You have been talking about some of your priorities since the beginning of the meeting. Are there other priorities that you haven't had the opportunity to voice, and that you would like to tell the committee about, apart from the backlog? We hear you loud and clear on that issue. There is also the issue of enforcing the law once it has received royal assent.

Do you have other priorities in mind that you would like to inform the committee about?

[Caroline Maynard]

We must work to shorten delays, clear the backlog and ensure that new complaints are processed faster. That will be quite a significant challenge.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you. Your priorities are clear.

I have another question for you. You briefly touched on the subject when Ms. Vandenbeld asked you about it. Have you noticed exemplary practices, either elsewhere in the world or even in your experience, that you would like to implement or further study?

[Caroline Maynard]

Are you referring to practices concerning access to information?

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Yes.

[Caroline Maynard]

I would certainly have to speak with the heads of the institutions, but I can assure you that, in our committee, we try to promote informal access to information, to not require people to make access to information requests, especially for those who seek access to their personal file. There are still institutions that require even their own employees to make access to information requests, which is completely unacceptable.

I saw this with grievance cases, and I had to make decisions and send my findings to the chief of staff. Some Canadian Armed Forces members had to make access to information requests to acquire information relevant to their grievance right. We see this, but there are other places with very informal policies. I think that we should be going in this direction.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you.

I have asked all my questions, Mr. Chair. Thank you very much.

[The Chair, Conservative, Bob Zimmer]

Thank you, Ms. Fortier.

Next is Mr. Angus, and we do have time. We started a bit late.

Mr. Angus, you have three minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

I want to go back to the issue raised by your predecessor, the concern about the ability to deny access to information based on the vagueness of requests. That has a particular implication for indigenous communities doing research for claims. We just had a case where a document that was nearly 100 years old, relating to the treatment of Indian children in a tuberculosis hospital, was denied. My concern is that the crown is always the defendant in dealing with any of these hearings for indigenous justice. The farther back you go in Indian Affairs, the more of a black hole it is, which is why many of the documents are more vague.

How do we ensure that indigenous justice is maintained in the application of Bill C-58, if people are researching historic documents where they might not know the exact name of the document and they're having to do fishing expeditions because they're not sure where the evidence is?

[Caroline Maynard]

That particular issue is definitely of concern. I agree with you that, with some documents, you don't know where they would be and in what form they would have been when they were produced, if they were produced. I don't know the extent to which an institution will use clause 6 to deny. It's something that I will have to really carefully monitor. As I said earlier, the fact that they need to have the approval of the commission to deny and decline is a good step forward, but it could still be an abuse of process and extend the delay in getting that information. We'll have to work with the institution concerned and explain the relevance of those documents and the right of these people to have access to these documents.