Information & Ethics Committee on March 11th, 2020

[The Chair (Ms. Rachael Harder (Lethbridge, CPC)), Conservative, Rachael Thomas]

Welcome, everyone. We will get started.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Madam Chair, on a point of order, I just want to express my appreciation to the clerk for once again getting a televised room. I know they're in short supply on the Hill. I do express my appreciation to the clerk and all of those who work hard to make sure that we can be held accountable to the highest extent within our parliamentary duties.

Thank you.

[The Chair, Conservative, Rachael Thomas]

Thank you, Mr. Kurek.

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

Madam Chair, on a point of order, I wanted to bring this up because I was very uncomfortable about a tweet that you sent regarding a vote by one of the members.

I voted with the Conservatives because I believe this ethics issue deserved to be heard, but it was voted down, and it was voted down because of the right of every member to vote according to how they see the issue. I think it's vital that we have trust in the chair to be non-partisan. The chair has to have our support. I have to know that when you rule against something, you are doing it because you are the chair, not because of a particular interest.

I think this tweet was very unprecedented, and I am concerned that it was an attempt to intimidate a member of our committee. I think we need to address this. I would hope that you would be willing to address it as well.

[The Chair, Conservative, Rachael Thomas]

Mr. Angus, thank you very much. There was no tweet, for the record; however, there was a Facebook post. I will take full responsibility for that. I did in fact post something with regard to the member from the Bloc Québécois. To her, I will apologize. As chair, it was a misstep. I certainly apologize, and it has been taken down.

With that, we will go on to hear from our witness today, Ms. Maynard, who will serve as our witness for the next hour.

You have 10 minutes for opening remarks, and then we'll proceed with questions from members.

[Caroline Maynard, Information Commissioner of Canada, Office of the Information Commissioner of Canada]

Thank you, Madam Chair.

Thank you for inviting me here today.

I am pleased to be able to speak to you about my role and to meet some of you for the first time.

I have been the Information Commissioner of Canada since March 2018. With two years under my belt, I feel that I am in a good position to provide some perspective on my mandate, and offer you some insight as to what’s on the horizon.

I expect your analysts have already provided you with an overview of the mandates of the officers of Parliament relevant to your committee, so I’ll speak briefly on my mandate and my office, followed by my priorities. I will then touch on some of the changes that have been front and centre at the Office of the Information Commissioner, or OIC, as well as some of the challenges we face as an organization.

At the outset, let me emphasize an important point and a frequent source of confusion. The overall administration of the Access to Information Act and the policy instruments and tools that support its administration all fall under the authority of the Treasury Board Secretariat. This means that the TBS oversees the handling of access to information requests within the federal institutions.

My role is to investigate complaints relating to these requests, normally because the institution is late in responding or because requesters are not satisfied that they have received all of the information they are entitled to.

While my office receives thousands of these complaints a year, I also have the power to initiate a complaint myself. In addition, I can initiate and intervene in court proceedings when necessary. My office has done this a couple of times.

As an agent of Parliament, I report annually on my activities, and I can also issue special reports to Parliament in respect of important issues that fall within my powers and functions.

The commission has approximately 120 employees, with about 70% of them working in investigation and governance. I am supported by three deputy commissioners, responsible for the following sections: investigation and governance; corporate services, strategic planning and transformation services; and legal services and public affairs.

My goal is to maximize compliance with the act using the full range of tools and powers at my disposal.

The role of the office is of critical importance, because Canada's freedom of information legislation gives Canadians the right to access information about their government—the activities it undertakes, the decisions it makes and the money it spends. The Supreme Court of Canada has called this right of access a quasi-constitutional right.

You won't be surprised to hear that Canadians are submitting more and more requests because they want to know how decisions in government are made and how the government is using public funds. This knowledge promotes trust in our institutions and their leaders. I can attest that the thirst for this knowledge will not be going away.

I will now speak briefly about the four priorities that have been the focus of my first two years of my mandate. They form the basis of my soon-to-be-launched strategic plan, which will carry me through the rest of my seven-year term.

My first priority is to optimize openness and transparency within my own organization. One of the ways we've done this is by publishing guidance regarding our investigations so that complainants can understand how and why we are reaching certain conclusions. We now have a searchable database of decisions as well. Both the database and the guidance documents are available on our website.

Another priority for me has been to foster collaboration with stakeholders. With complainants specifically, I have worked diligently on ensuring timely communications, which has led to a better understanding of their needs and what they are seeking, and ensuring better follow-up on their files. We have made some progress, but we have a long way to go.

I also meet regularly with the federal access community. These are the public servants who process requests within federal institutions subject to the act. I consult with them and encourage them to flag issues and present new ideas for innovation. In addition, I meet regularly with the heads of institutions and their senior management teams. I let them know what is working and what is not working in their approaches to managing access requests.

My third priority has been to implement recent changes to the Access to Information Act. The act came into force in 1983. Amendments passed by Parliament last June included important modifications. These amendments gave me additional tools. For example, I now have order-making powers. This means that I can order an institution to take specific actions, including disclosing more records, when I find that the complaint is well-founded. I can publish these orders and my recommendations in all of my final reports on my website. In fact, the first final report was published just last week.

Institutions can also now seek my permission to decline to respond to a request that is vexatious, made in bad faith, or otherwise an abuse of the right of access. As the bar for approving this type of application is high, I have granted it only once to date.

Last, but certainly not least, it has been my priority to tackle my office’s inventory of active complaints. The inventory has proven to be quite a challenge. Even though we are closing more files and reducing the inventory of old complaints, there has been a marked increase in new complaints. By this time last year, we had received about 2,200 complaints. This year so far, we have received 5,900 new complaints. Importantly, while we have closed more than double the number of files this year, our inventory keeps increasing rapidly.

This leads me to another significant challenge facing the OIC: our funding. We are grateful for the $1.7 million that we received when the amendments to the act came into force last June. However, every year, for the last four years, the former commissioner and I have had to ask for more funding to deal with an ever-increasing workload for our investigators.

While temporary funding has been helpful, it has also resulted in staffing challenges for my office, as we are not able to offer permanent jobs. We find that we invest resources into training new recruits and hiring consultants, only to lose them to offers of more permanent positions elsewhere. It makes planning difficult and sustaining any momentum impossible.

ATIP units within federal institutions are also faced with their own resource challenges. Staff turnover in this field is high. They need additional resources. It is a very difficult sector to work in. They need the additional resources to deal with the ever-increasing number of requests and to be able to respond to the demand from my own office.

I stress that additional resources are required across the system, if Canadians are to be well served by their access to information regime. If the government is serious about its commitment to transparency, as highlighted in ministerial mandate letters, the access to information system, which plays a key role in ensuring government transparency, must be supported and prioritized.

I want to assure you, however, that the employees at my office are dedicated and are doing amazing things despite limited resources and an ever-expanding workload. They believe in the work they do and I feel very supported.

This concludes my opening remarks.

I would like to leave you with the message that my door is always open to you and your staff. I will be pleased to appear before you whenever I am called. I am very open to meet and engage with you in individual or group discussions.

Access to information is a critical component of government openness, transparency and accountability. It promotes trust between our institutions and our citizens.

Thank you.

I will now answer any questions you may have.

[The Chair, Conservative, Rachael Thomas]

Thank you, Ms. Maynard.

We will proceed to our first question from Mr. Barrett. You have six minutes.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks very much, Madam Chair.

Ms. Maynard, it's a pleasure to meet you. I didn't shake your hand before the meeting, because we're not doing that these days, but an air high-five or an elbow bump.

There are a couple of things from your opening comments that I'd like to discuss with you. One is the tool that you have for order-making powers. In your words, that was to be able to give an order to an institution to take specific actions including disclosing more records if you find a complaint to be well founded.

An individual who has testified at this committee in the past, Mr. Vincent Gogolek, who is the former executive director of B.C. Freedom of Information and Privacy Association, said, “If someone in government wants a record to disappear, all they have to do is call it a Cabinet confidence.”

I expect that you'll see where my question is going.

He goes on to say:

There’s no reason to keep this black hole in the Act.... Many provincial governments have allowed their Information commissioners to examine these records for years without any problem—there isn’t any reason the federal government couldn’t do the same.

We've seen from other commissioners, other officers of Parliament, that this has been a hindrance to their work when they've been investigating a well-founded complaint. Broadly on the subject of cabinet confidences in respect to how you're able to do your work or not do your work, I'm wondering if you can give me some context. Has that been a barrier to you?

[Caroline Maynard]

In my work, we see this happening in response to requests for information when the package that is received has documents that are blacked out because they're exempted under cabinet confidence. Cabinet confidences currently under the act are excluded and not subject to the act.

In our investigations we request that departments provide certain information to confirm or to make sure that those documents are cabinet confidences.

I will agree with you. Canada is one of three levels of government where we are not allowed, as commissioners, to see the documents confirming cabinet confidence. In any other country, commissioners are allowed to see documents that confirm cabinet confidence.

In some of our investigations in the past, we were able to conclude that the cabinet confidence stamp was put on documents that were not such confidences, and should have been released.

It's not easy to make that determination when you don't see the document, and so I would recommend at the next review of the act that this be amended so that we can at least be able to see those documents.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thank you for that.

What recourse do you have when you have made a determination that the cabinet confidence seal has been misapplied?

[Caroline Maynard]

If we have come to that conclusion, we talk to the institutions and explain why we arrived at that conclusion. In the past, we were only able to make recommendations to the institutions. Now I can order an institution to disclose a document.

If I were to disagree with the institution, it could result in a final report to the minister explaining why the document is not a cabinet confidence, but it's really difficult under the current act because we don't see the documents. We have to rely on the indexes that are provided by the institution that created the cabinet confidence document, and it's often very difficult to conclude that it's not.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Have you published the metrics or statistics on when you came to that determination that the seal of cabinet confidence had been misapplied to a document during your two-year tenure?

[Caroline Maynard]

I would say that it's probably only happened once.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

You've noted that your funding is obviously essential to doing your job, and you do a lot with a small but determined team. This work is important for Canadians. I certainly appreciate your work and, as I'm sure we all agree, it's very valuable.

How are your resources concentrated to ensure that the most number of Canadians receive the best quality of information?

[Caroline Maynard]

Currently, in a budget of $13 million a year, $11 million is spent on salaries and 70% of that is all on investigation. Less than 20% of our expenses are spent on internal services, such as corporate services, HR, finance. We also have a small amount on legal services and communication outreach. The majority of our spending is on hiring investigators. We currently have, I think, 69 investigators full-time.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

What percentage or proportion of your investigations are self-initiated versus complaint driven?

[Caroline Maynard]

Right now, I have two self-initiated complaints that I have done myself. They are systemic investigations. That's when we see an issue as seeming to be broader than one file because we see it in more than one file. In that case, I initiated a systemic investigation. I know that the former commissioner initiated a few. I don't know how many, but it was not many.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Okay.

[Caroline Maynard]

It's usually because there's an issue that is of public interest or that will have an impact not just on the institutions but on the system overall.

[The Chair, Conservative, Rachael Thomas]

Ms. Brière.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Good afternoon.

Thank you, Commissioner, for your presentation.

One of the recommendations in the report prepared by the committee in the previous Parliament was to limit the amount of data and to clarify the consent rules for the exchange of personal information between government departments and agencies.

Have you begun to follow this recommendation in your work?

[Caroline Maynard]

I am not sure I understand what you are speaking about. It was probably a recommendation pertaining to the Privacy Commissioner.

My work involves access to information requests. You will be meeting my colleague Mr. Therrien, the Privacy Commissioner, this week or next. His job is to ensure that the privacy of employees and Canadians is not violated. He also makes sure that anyone who requests access to their own information can obtain it.

I have, however, in the course of my investigations, seen redacted personal information. We do work rather closely with Mr. Therrien, but I have not heard about the matter you mentioned. Mr. Therrien will probably be able to answer your question.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

All right.

I have a similar question. How can people be confident that their information is not used for purposes other than those for which they gave their consent?

[Caroline Maynard]

Mr. Therrien will be able to tell you. He probably encounters that frequently in the course of his investigations.

There is one thing I get frustrated about. As an example, let's say there is an access to information request from the person who submitted that very information, perhaps someone who has applied for refugee status.

He will be asked to supply personal information about his wife and family. However, when he submits an access to information request, all he will receive is the information pertaining to him. The institution is required to redact even personal information about his wife and family, which generates additional work.

I made a recommendation about this to the Department of Justice because it is currently studying amendments to the Privacy Act. In such situations, when the requester is the person who supplied the information, it should be provided without requiring our institutions to do additional work. They have enough access to information work, and there is no reason why we should add to their workload.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Okay.

What are the Office of the Information Commissioner's priorities for the coming year?