Information & Ethics Committee on May 16th, 2022

[Caroline Maynard]

The specific case you're referring to is actually a file from the RCMP that was transferred to Library and Archives. Library and Archives is the one that had requested an 80-year extension to respond to the request.

Library and Archives are in a very specific and difficult situation where they are in control and they have the documents with them, but they're often documents that were created by another institution. What they do is consult with the institution the information comes from. That consultation takes—

[Matthew Green, NDP, Hamilton Centre, ON]

Just for reference, this was on Project Anecdote.

While we have the RCMP up, there's another history. You referenced American examples. I will bring to your attention the work on COINTELPRO in the 1970s and what has been called administrative sabotage. In fact, Paul Marsden, the former military archivist for Library and Archives of Canada, said, “Something unique is slowly strangling Canadian history, and we should call it out” in these processes.

Could you perhaps comment and expand on why transparency on these types of sensitive archival records.... I think with this particular file it references the sensitivity around FOIs of CSIS and the RCMP with specificity around the RG146 vault.

Can you talk about the need for the automatic declassification of information for the public interest?

[Caroline Maynard]

This is exactly what we were talking about earlier.

We need in Canada a program where these older files, which are secret, top secret or have sensitive information.... Our history, with respect to some very specific national security documents that existed 50 or 60 years ago, is still classified as secret and top secret. If we don't have a program where a committee or a group or somebody looks at them after a certain number of years and declassifies them to make them available, we will continue to have access requests denied, like Mr. Dagg who received an 80-year extension.

The United States has a program right now on declassification. There's an automatic program where, after 20 or 25 years, documents such as Project Anecdote files are reviewed and declassified and then accessibility to those documents is a lot easier.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

I really do appreciate the candour.

What I heard in your statement and what I'm reading in your letter to the Treasury Board, with the candour with which you present it, is sobering. In fact, I would call it the canary in the coal mine. It's an indictment.

In your recommendations, recommendations 7 and 8 provide specificity around cabinet confidences. As a member of Parliament and somebody who believes that we have parliamentary privileges to be able to get to the bottom of our work and to have access to these documents, it's been my experience that the government, particularly this one, has a propensity to make everything a cabinet confidence or everything about national security and, therefore, nothing is accessible.

In your letter, you referenced that you had discussions with 12 of the 16 ministers. You talked about the need to set an example. I would agree that attitude reflects leadership. From that, how many of them have responded back to you with a subsequent plan for the development of a declassification program?

[Caroline Maynard]

I'm aware that right now the public safety department is doing a pilot project on some specific documents where they have a committee looking at declassification.

I've heard that TBS is looking at putting in place such a program, but there's nothing concrete so far. I'm hearing anecdotes and it's pretty much hearsay, but the public safety minister has one.

[Matthew Green, NDP, Hamilton Centre, ON]

Just for the record, will you confirm that it's two out of the 16 who have at least said they're initiating some type of project in this regard?

[Caroline Maynard]

No, the departments are not.... I think what we need is a program overall for the federal government. If each department starts its own, it's not going to accomplish much. I think they have to get together.

Most of the institutions don't deal with those types of documents, but we have Library and Archives, Global Affairs, PCO, DND, RCMP, Public Services—

[Matthew Green, NDP, Hamilton Centre, ON]

With my time remaining and the answer being short, I'll ask you this. In your list of recommendations, do you feel that you have adequately captured the direction and recommendations for this committee to ensure that, leaving this study, we would have the basis for the recommendations to ensure that there is a government-wide declassification program? Is that something you'd like to add in addition?

[Caroline Maynard]

I would like to refer you to my special report that I tabled two weeks ago for Library and Archives on a systemic investigation where we made recommendations with respect to declassification.

We also did a report a couple of years ago on that specific topic. It is accessible and I can send you the link after my appearance, if you would like.

[Matthew Green, NDP, Hamilton Centre, ON]

Mr. Chair, just as a point of administration, could we just request that those documents be submitted in writing, so they could be for the consideration of our analysts for final recommendations?

Thank you.

[The Chair, Conservative, Pat Kelly]

Your request is noted.

We'll go to Mr. Kurek now for five minutes.

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

Thank you very much, Chair.

Thank you, Commissioner, for coming to this committee.

I'm a firm believer that one of the hallmarks of a well-functioning democracy is an effective, efficient and trustworthy access to information regime. Would you agree with that?

[Caroline Maynard]

Totally, yes.

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

Since being elected in 2019, my office has filed a little over 300 ATIPs. About 50 or 60 are outstanding.

My question is very much related to a letter that you shared with Minister Duclos when he was minister of a different portfolio. I'll read from it: “As you are aware, the pandemic did not suspend the right of access. If anything, it increased the need for government transparency—an effort that calls for the collective leadership of all members of cabinet.”

Commissioner, have you seen that leadership over the course of the pandemic?

[Caroline Maynard]

We have not been able to see real actions. I know that there are some actions being put together by TBS, but we are still waiting for a report with respect to the legislative review of the system. Some departments are doing really well. I would say that the Canada Revenue Agency has put in place a lot of innovation to be able to respond to access requests that were increasing in numbers because of CERB and all of the benefits that they put in place. As a whole, it's very difficult to pinpoint action.

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

Thank you very much. I appreciate that.

Library and Archives, according to the information that's provided, shows that 80% of requests did not comply with the timelines in the act. There are other departments as well, the RCMP, CRA and others. I know you wrote to 16.

What is the solution? Do there have to be further penalties? Is it resources? Could you sum it up in 30 seconds? I know time is short. What is the solution?

[Caroline Maynard]

It's a culture of openness and moving away from secrets, like we talked about earlier. More resources will be needed, but better management of information.... There are a lot of different factors that need to be considered. It's not just one thing.

Definitely I think that leaders need to give the direction that they want to be open and transparent and then match their words.

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

Thank you very much for that.

I would note that this was an issue that certainly came up in the 2015 election. The government seemed to claim victory, but certainly, from what you've described today, that's not a victory that anybody should be proud of.

Madam Commissioner, have you ever noted political interference in any access to information requests?

[Caroline Maynard]

We have not had any complaints with respect to that type of interference. I understand that Madame Legault, the commissioner before me, had an investigation with respect to that. There's a report on our website with respect to that type of interference, but that was previous to me.

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

Thank you.

Has there ever been a note of access to information officers being chastised, disciplined or released, because of performance that may have been related to the information they released through access to information requests?

[Caroline Maynard]

I wouldn't be able to tell you. I'm not aware of anything. If we see in our investigation that somebody has been trying to interfere or intervene and that it could also be intentional, I cannot investigate those types of actions. I can refer them to Minister Lametti, who can investigate criminal action. I know we referred six of those, and I don't think there's ever been an investigation by the RCMP or by this government with respect to those.

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

Just to clarify in the short time I have left, you've referred six cases like that to the Minister of Justice, but there's never been any investigations.

[Caroline Maynard]

As far as we're aware, there were six by me and former commissioners that never led to charges.

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

Thank you very much, Commissioner.

[The Chair, Conservative, Pat Kelly]

Thank you, Mr. Kurek.

Now we have Ms. Khalid.