Information & Ethics Committee on March 11th, 2020

[Caroline Maynard]

The top priorities are definitely to reduce the backlog of complaints and to work with the complainants and the institutions to find solutions other than access to information. By this, I mean proactive disclosure.

When I meet heads of institutions, I often ask whether they have a list of frequently requested access to information items and whether they take this into consideration in their publications. In some countries, when a document has been requested three times, it is automatically published on the institution's website.

We have no such principle in Canada. I try to encourage the institutions to do this on their own. There is no need for a mandatory list. Those institutions that know which requests they receive frequently should disclose them proactively on their own.

This would significantly reduce the workload for our very small access to information units. The number of access to information requests is incredible, and growing every year.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In your presentation, you underscored the importance of reducing the backlog of complaints. I would imagine that this is a major challenge, for example, in terms of the number of employees and the available funds.

[Caroline Maynard]

Indeed, we are trying to obtain additional funds so that we can hire more people.

Moreover, the problem is really government-wide. Even if I had 45 new investigators, I would not be able to get answers concerning my investigations from the institutions, because they do not have the required resources either. Within the institutions, the same team handles access requests, provides answers to my complaints, and often handles proactive disclosure on behalf of the institution. Employees have priorities. I am often at the bottom of the list because the access request is a priority.

These people also have to handle requests from other institutions. Consultations between institutions are horrible, and that is often why there are more delays. Once again, it's the same small team that has to manage all of that. It is essential to invest in the system, in information management, and in solutions other than just improvements to access to information.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I would imagine that this must be done in a secure manner.

[Caroline Maynard]

Yes, that's right, to prevent any invasion of privacy, as we mentioned earlier.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

There is therefore data sharing between the various government authorities.

[Caroline Maynard]

This sharing occurs when a record is to be disclosed to the person who requested it.

Let us assume that the record comes from two institutions involved in the same case, such as National Defence and Foreign Affairs. They will speak to one another to make sure that they are in agreement about providing the information requested. That is the level at which the exchange takes place. Such consultations are rarely about personal information, but rather matters like national security, legal opinions or justice issues that are to be turned over to an institution. The two will speak to one another to make sure that they agree on what can be disclosed and what cannot.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Ms. Maynard.

[The Chair, Conservative, Rachael Thomas]

Ms. Gaudreau, you have six minutes.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Thank you, Madam Chair.

I would like to thank you for your presentation, Ms. Maynard.

It was helpful, but I would like to know more. I was interested in one of the details in an example you mentioned.

In terms of the process when an access to information request is received—let's say from a journalist—how long would it take? How does it all work in practice, given that there are staffing issues and a growing number of complaints?

I'd like to hear what you have to say about this.

[Caroline Maynard]

The Treasury Board is responsible for administering access to information, but the act states that an access application requires a response within 30 days.

If the requester does not receive a response within 30 days, a complaint can be submitted to my office. Institutions may request an extension. This often happens when the number of pages exceeds 500 or 1,000. Often, 30 days is not enough time for revision, because other institutions may be in possession of records that deal with several people. They can therefore ask for an extension. If the person making the access request is not satisfied with the record received, with the request for an extension or with the response time, that person can file a complaint with our office.

The process can differ depending on the institution. Some institutions are very well equipped, but others still rely on paper records. When a request is received, the person receiving it has to go and see someone else in their office because this particular file is that person's responsibility, and ask for the relevant emails and paper records. After obtaining the paper records, the access to information employee needs to scan them or, as often happens, write them out by hand. This adds time to the handling of the request. We are trying to encourage institutions to purchase software that can speed up the technological process of exchanging emails and to find a more efficient way of managing emails.

Let's take the example of a Canadian who wants to know how a particular decision was made with respect to a government policy, and the reply consists of 10 million pages, 5 million of which are emails and exchanges among managers because people often work via email. Five people who receive the same email will supply the very same email in response to a request for access. There is an enormous amount of document duplication, and the need for investment and employee training when it comes to information management is huge. This would greatly reduce costs and delays for the poor employees who have to work on these 10 million pages.

Then, for the investigation, we do the same thing, because it has to be looked at one page at a time. After that, we speak to the people at the institution. It creates an enormous amount of work.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Based on what I have heard, then, because of the increased number of complaints in recent years and the 30-day time limit, the current problem is staffing. You spoke earlier about turnover.

[Caroline Maynard]

Yes.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Is there a connection?

[Caroline Maynard]

Treasury Board statistics indicate that over the past six years, access to information requests have increased by 225%. Last year, the government received approximately 120,000. One institution has already received 120,000 since the start of the year, which will mean a doubling in demand. Access requests have increased by 225%. Complaints to us are also continuing to increase. Yes, there is a correlation. However, resources have not kept pace. There is therefore a need throughout the entire system.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Right.

Have I used up all my time?

[The Chair, Conservative, Rachael Thomas]

You still have two more minutes.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Very good.

Commissioner, if you had only one extremely important recommendation to make, what would it be?

You mentioned funding and staffing, but in view of the bills passed in recent years, including the latest, Bill C-58, what would be your main recommendation?

[Caroline Maynard]

The act provides for a new stage of legislative review next year. My team is currently examining every provision of the act. We would like to make sure that the recommendations we make will be based on the complaints we have received, our investigations and our observations on what works and what does not.

Consultations between institutions are a major problem, because there is no specified time limit. There is a 30-day period to respond to an access to information request. However, if you consult another institution because you believe that it is essential to do so, because it is a matter of national security or important information, that institution is not required to do so within a specified time period. There are instances in which the institution consulted took six months or a year to respond. However, it is the institution receiving the request that is required to comply with the act.

We are going to look into what is done elsewhere. The fact is that we are not the only ones to have federal access to information legislation. Nonetheless, I think that it will be important to set a time limit for the individuals or institutions required to respond to a consultation request. The absence of a limit is definitely a problem. It leads to a failure to meet deadlines.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Thank you very much. That was very helpful.

[The Chair, Conservative, Rachael Thomas]

Thank you.

Mr. Angus, you have six minutes.

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

Thank you for being here. Your role is vital to our democracy. My former colleague Pat Martin used to say that access to information was the oxygen and lifeblood of the democratic process. With every government that comes in, including this latest one, its first promise is open government. Then the first thing they do, when they realize that open government means that people can ask questions about bad decisions, is to start to try to find all manner of ways not to have open government.

There are a number of tricks. Cabinet confidence, I think, is section 23. No, that's solicitor-client confidence; that's the second one. There's solicitor-client confidence, cabinet confidence, and then the great black hole of ministerial offices. That used to drive the former commissioner, Madame Legault, crazy, how it could be that anything that goes on in a minister's office had to be protected from the public finding out. That's where all the decisions are made.

Under Bill C-58, did any of that change?

[Caroline Maynard]

Under Bill C-58, there's a part 2 now, about proactive disclosure. What they've done is codified, basically, the policy that existed before on proactive disclosure. It is also applied to a number of new institutions, including the ministers' offices, the Senate, judges—

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

The Senate, yes.

[Caroline Maynard]

Proactive disclosure is one way to open up, and it was something that was added. But there's a difference between my role under part 1 to investigate access requests and part 2, proactive disclosure, which is outside my mandate.

One thing was added, and I thought I was going to be happy with this, but they added the names of the staffers of ministers' offices and their titles. That's no longer considered private or personal information. The problem is that they're not considered as public servants. All you can receive is the name of the staff and their title, but if there's other information related to that person, they're not considered a pure public servant. The information about public servants under the Privacy Act—their name, title, opinion and anything related to work and what's related to the business—is not considered personal information.

They've made a difference between the two.