Information & Ethics Committee on March 11th, 2020

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

There's a difference between proactive disclosure and the right to access documents. I would refer my colleagues back to 2011, when Tony Clement managed to get $50 million in border security money diverted to Muskoka to spend on gazebos and sunken boats. All of that was under ministerial privilege. We couldn't find out how he spent a dime until we went to the municipalities. Thanks to their access to information act, we found they had homemade applications for spending money. That's how that got out, but if it was under the minister's office, we knew nothing.

Is making sure that we have access or at least giving you the right to decide.... I think that's the fundamental question. I can't say if it's cabinet confidence. You can. It seems to me that it's interfering with your work if you don't have the right to decide whether those documents do fall under that or they're just being needlessly protected.

[Caroline Maynard]

I agree. I think it should be like solicitor-client privilege, which is one of the most protected privileges, but I'm still entitled to see the document. I can tell you that Canadians trust somebody who is not in the institution. If we have a document in front of us and we tell the person, yes, what you've received is blacked out, that it's redacted because it's a legal opinion, or it's protected by section 23, like you say, it reassures Canadians.

I think the same thing would happen with cabinet confidence. If we were able to confirm, to see it and not release.... We don't release documents. We ourselves would never disclose a document. We talk to the institutions and ask them to release it, or we make an order, and if they don't agree with my order or my recommendation, they can go to court. There's nothing disclosed until a final decision is made.

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

Let's talk about that, because in 2014 I asked the government, which was then a Conservative government, for notes regarding the political decision to withhold the 10,000 pages of police evidence of the crimes that were committed against children at St. Anne's residential school. I was not looking for those police documents; I don't have a right to them. I was asking for the emails—for the political decision that went into that act—which should have been covered. It was delayed and delayed, and then the Liberals came in and just said, “No, we're not going to let you see them at all.”

Your predecessor took them on. We spent many years on it. In fact, she threatened to take them to court. They agreed, finally, to give me the documents in three batches. I'll bring them in, if you people want to see them. There were three batches of blacked out documents of every email saying “Hey, Mary, how's it going?”—blacked out—or “Hey, Bob!”—blacked out.

It strikes me that the justice department just waits out.... I mean, we fought this battle over seven years. They were threatened with going to Federal Court and they still blacked out the documents to protect the minister. With your order-making powers, could you have changed that decision? Or do they have that power to defy and not turn over documents that should be within the public realm?

[The Chair, Conservative, Rachael Thomas]

You have 20 seconds.

[Caroline Maynard]

I can order the production of documents, except for the cabinet confidences, but I can also…. Yes, if I make an order that the disclosure should be done or that exemption should not be applied, the onus is on the institution to go to court, not on me to fight the decision.

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

Thank you.

[The Chair, Conservative, Rachael Thomas]

Continuing with the five-minute rounds, we're going to Mr. Gourde.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Madam Chair.

I would like to thank the commissioner for being here today.

You touched upon a subject earlier that surprised me. You mentioned best practices used in other countries, but not here. If we were to compare ourselves to other countries, we might not look so bad. In any event, are there countries whose notable access to information practices deserve our attention?

[Caroline Maynard]

Yes. We have had our act for 36 years now. Canada was the 12th country in the world to enact access to information legislation, making it one of the first countries, one of the leaders. Today, 120 countries have access to information legislation. Of course, the most recent statutes provide more powers and fewer exemptions.

The act itself can certainly be amended and improved, but its application also needs to be reviewed. Some countries have very liberal statutes, but their institutions or governments fail to enforce them to the extent we do. Here, the government appears to have a good understanding of exemptions and exclusions.

When we recommend legislative amendments, we look at what other governments do. In Canada, the provinces have their own information commissioners and their own statutes. They often have practices that could be adopted. We have also looked at what Australia is doing, which is to publish any records for which three access requests have been received. I believe another country also does this.

One constraint in Canada that does not exist in other countries has to do with our official languages. The institutions tell me that they would like to provide more information, but that the need to provide it in both languages requires resources and additional costs.

We are trying to find solutions to this in order to see whether there might be another way of giving access, for example by publishing records or preparing summaries. Canadians are clearly entitled to receive information in both languages. When they submit an access request, though, what they will receive is the record in the language in which it was written. This means that there are constraints as a result of the fact that we are a bilingual country.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

You said that there was a major increase in the number of complaints. Do you know why this is the case? This is really recent. A 225% increase is enormous. It seems to me that an annual 10% to 20% increase would already be significant.

[Caroline Maynard]

One of the theories is that the increase has come about because I now have the authority to issue orders. I believe that Canadians are increasingly impatient or fed up with waiting. Some of the complaints submitted to us come from people who have been waiting for information for several months or even several years. They know that I can now order the institution to deal with the record or the file, particularly for complaints about how long the process is taking.

On the other hand, there has not been much of an increase in complaints about exemptions. By this, I mean denials or requests people are complaining about because they have not received all of the information to which they are entitled. The figures are fairly similar.

This year, we received 4,000 complaints about one particular institution, all of which had to do with processing delays. This institution received 120,000 access to information requests, so inevitably there are going to be complaints. The number of access requests has increased to such an extent that it is impossible for the institution to respond to them within the 30-day time limit. It's a problem.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Would an access to information request have to be made to find out the name of the institution that is receiving so many complaints? If Canadians' rights are being violated, then, there is truly a problem at that institution.

[Caroline Maynard]

When I see something like that and it becomes clear that the problem is more widespread, I have the authority to launch an investigation. In the case mentioned, I launched a system-wide investigation of Immigration, Refugees and Citizenship Canada. The department receives a huge number of requests and works very hard to respond to them. By the time we receive the complaint, there has often already been a response to the request. We would like to know why it is receiving so many requests and what they are about. We would like to know what the challenges are, and how we could help them and ourselves, because the commissioner's office cannot handle 5,000 more requests per year.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

I might have a small piece of advice. As we are receiving many—

[The Chair, Conservative, Rachael Thomas]

I'm sorry, Mr. Gourde. Your time is up.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Okay. I will come back to it later.

[The Chair, Conservative, Rachael Thomas]

We'll move to Ms. Shanahan, for five minutes.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you very much, Commissioner.

Like my colleague Mr. Gourde, I am trying to understand the scope of your work.

I believe that everyone has received the document concerning the backlog. That is very helpful. We like the tables. However, can you explain to me why it only goes back to 2018?

The numbers clearly show that there will be a backlog every year, unless it is eliminated, but, then, there will always be a backlog for the various reasons that you mentioned.

You said that there were approximately 2,000 complaints for 120,000 access to information requests to date. That amounts to between 1% and 2%, does it not?

[Caroline Maynard]

The number of requests was 4,000, Ms. Shanahan.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Okay.

I expect that you're going to go into more detail about the table, but I am trying to understand. Is it 1% or 2% of the total number of requests for which a complaint was made?

[Caroline Maynard]

A complaint was made for fewer than 3% of access to information requests. That is not a very large number. The table that I provided is designed to demonstrate that, when I was appointed commissioner in 2018, there was a backlog of 3,489 cases. I was just taking up the job and there were already 3,400 complaints and investigations pending.

On April 1, 2019, after a year of work, we had lowered this figure to 3,300, but the grey shaded area in the table shows what remained from my initial backlog, whereas the pink section represents new complaints. Then, in 2020, we further reduced the number of older cases. We are continuing to work on the cases from the previous year, but, then, we received 5,900 new complaints this year and we still have 2,400 to deal with.

I checked this morning and found that we had processed 5,200 complaints this year. That is unheard of. Last year, we processed 2,600 and the year before that we handled 2,400. We generally deal with most of our complaints informally, but we will never be able to manage the demand with the resources we currently have.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

That's interesting.

When you speak about resolving complaints, there are really only three options, are there not? The complaint must either be unfounded, founded and dealt with regularly, or founded but much more difficult to—

[Caroline Maynard]

In which case, I set the official process in motion.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Yes.

[Caroline Maynard]

Currently, we no longer wait. We receive solid collaboration from the institutions, who now understand the challenges we face. We speak to one another and try to resolve the complaints in a friendly and informal manner. We speak to the complainant. Sometimes we agree to disagree, and that's all right. That is my work. If an act says something and I come to the conclusion that it was not complied with, I make a recommendation or issue an order, and then we decide whether to take it further and go to court.

Unfortunately, last year, with the amendments made to the act, we were allowed to publish our investigation reports for the first time. There are 35 years of precedents and complaints that were investigated and settled. No information had ever been published, except in the annual reports. This caused me a great deal of frustration, particularly when I was getting ready to apply for the position. I was looking for information about the institution and could find nothing about the number of decisions and all the investigations. The first thing I decided was that we would begin to prepare summaries and provide case summaries so that people could at least know that we were being consistent.

When I issue a decision concerning National Defence and cite a specific section, I interpret it in exactly the same way as I would for any other institution. We have begun to publish our guidelines, including guidelines on our interpretation of the act, and we are beginning to gradually finalize our investigations. We've been able to publish these only since June, so the more investigations we can complete—