Information & Ethics Committee on May 16th, 2022

[Matthew Green, NDP, Hamilton Centre, ON]

We heard some try to deflect or diminish, perhaps, the impact of cabinet confidence on transparency and accountability. You have two recommendations in this regard. Can you elaborate on why you decided to put those in?

[Caroline Maynard]

We are one of the only countries in the Commonwealth that does not have an agency independent of the government to review cabinet confidence documents. Like I said earlier, requesters understand they are not entitled to those documents. It's difficult for me to tell them whether or not the redacted documents are cabinet confidence, so they will often scoop that out of the complaint.

I saw a case where cabinet confidence was mistakenly imposed on documents that were not. We also see that with legal opinions sometimes. They use legal opinion—the exemption in section 23—for documents about discussions between lawyers, or about policy advice that's not legal advice.

I always thought that having someone independent of the government to review those documents, so you can tell the requester, “Trust me, it's cabinet confidence”, would increase the trust of Canadians in our government. There's nothing worse than being told you cannot—

[The Chair, Conservative, Pat Kelly]

Thank you. We went significantly over time on that round, but not quite as badly as with other ones. That was an important answer.

Next is Mr. Bezan, followed by Mr. Bains.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you, Mr. Chair.

I want to thank Commissioner Maynard for joining us today and for her testimony.

I want to back up a bit. You're saying you referred six cases to the Attorney General. Over what time frame were these six cases referred? What were some of the circumstances under which departments refused to answer, and why did they need to get that type of legal opinion?

[Caroline Maynard]

I cannot get into the specifics of the complaints or the investigations per se. When we see actions that could be interpreted as intentionally trying to hide or erase or take away from somebody's access, I cannot investigate whether it was intentional criminally, so I refer it to the Attorney General. I think I've referred two or three during my term, and there were a few before me.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Do you know if they are being investigated, Commissioner, or did they just go into file 13?

[Caroline Maynard]

We're not informed. There's no follow-up with my office if it has been.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

By legislation, you have to refer it to the Attorney General, not the public prosecutor's office.

[Caroline Maynard]

We have to refer it to the Attorney General.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

They would have the option of handing it over to the Public Prosecution Service of Canada.

In your opinion, which department is performing the best right now, in terms of meeting access to information requests?

[Caroline Maynard]

I probably don't have any complaints against them, so I wouldn't be able to tell you. We know which ones are not doing well, but at the same time, having a number of complaints—

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Let's do it in reverse, then.

Which are the worst offenders? Can you give us departments, how long they're taking to fill requests and how many complaints are against them because they refused?

[Caroline Maynard]

In my annual report every year, we list the top 10 or 20 institutions. Most of the time, it's the same ones: IRCC, CBSA, RCMP, CRA, PCO and Library and Archives. The number of complaints are usually at the highest. Whether or not they are well founded is a different subject.

I can tell you that IRCC is definitely having a hard time responding to 120,000 access requests from clients who are trying to figure out the status of their immigration or refugee file. That was what led me to do a systematic investigation last year. I did a special report on IRCC and came up with a number of recommendations. Increasing the information they provide to their clients will definitely diminish the number of access requests and complaints, as a result.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Have those departments and the government in general invested heavily enough in having enough information officers to meet the level of requests they're receiving?

[Caroline Maynard]

I know that IRCC is really investing in their technology to provide more information and in changing the system, such as the portal they have on their site, but I think that plan of action is on a three-year term because of the amount of work that needs to be done. We still haven't seen any tangible results from those changes. The RCMP also has a very strict plan to try to respond to access requests.

It often is almost overwhelming. Even for me—I have 4,000 complaints in my backlog. When you close one and receive three, what do you do? It's really difficult. That's why our government has to do something else. We have to look at ways to provide information outside of the access requests. The system is overwhelmed.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

You mentioned that a number of departments have been able to adapt to the pandemic and adapt by using technology. Why weren't best practices used across all departments when you looked at who performed well during difficult times and who used it as an excuse?

[Caroline Maynard]

I know that TBS is using best practices, and they're sharing with all of the institutions, but like anything else, we're pretty much on our own. Even in my office we have our own access unit, because I'm subjected to the act as well. At one point....

It's really difficult to work with other institutions and to share. We're trying to do that too. When I do meetings with ATIP units, I tell them to go talk to CRA, which has epost now to provide requests, and maybe they would want to join that, or they could look at artificial intelligence to do research. We're giving them best practices, but it's really up to the manager and the minister in a department to put those things in place.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

It all comes down to leadership—or the lack thereof.

[The Chair, Conservative, Pat Kelly]

Thank you, Mr. Bezan.

Now we go to Mr. Bains.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you, Mr. Chair.

Thank you to our witness for joining us today.

iPolitics reported that well-known ATIP expert Dean Beeby is strongly in favour of updating the ATIP system, notably by the tender to replace paper-based or manual processes with a more digitalized system. Are you in favour of this work?

[Caroline Maynard]

Yes. Totally. I understand that TBS is now putting in place a system for online requests and online responses, which we are part.... It's like a pilot project. I think that will help for sure, as long as institutions join the pilot project. Hopefully, that will increase other types of innovation.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Okay.

Before the government reformed the law, many requests were for information that is now proactively published. I think you mentioned something around that earlier.

Do you think proactive publication reduced the number of access to information requests, since Canadians could get more online? On the flip side, do you think it increased the average complexity of requests, since such simple requests aren't being filed anymore?

[Caroline Maynard]

I would say that part 2 of the act, which provides proactive disclosure.... It's mandatory legislative proactive disclosure. It used to be a policy. It was followed by all of the ministers' offices, so it didn't really change anything. This information was usually proactively provided without having it in the legislation.

It hasn't, in our experience, reduced the number of requests because that's not really what Canadians are after. I think a lot of Canadians are asking for information right now about expenses, about COVID, about vaccines. That's not information that is on the list of proactive disclosure.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Okay.

My next question is around the power to order institutions to disclose information. Since 2019 your office has had the power to order institutions to disclose information. How often have you used this power, and has it helped to improve the transparency?

[Caroline Maynard]

It has really helped. We have used it over 40 times. What helps is to tell the institutions that we are about to order disclosure. Sometimes that has really helped discussions and compliance with the act, without having recourse to issuing an order.

The other thing that has really helped is the authority to publish our reports. I never had the authority to publish the results of our investigations prior to 2019. We are lacking 35 years of precedents from our office that we were not able to publish until an annual report, like summaries in the annual report. Now we can publish the full reports. They are accessible on our website. We have a database.

It doesn't have to be an order. It could be a recommendation. It really helps, because we can refer institutions to those reports and say, “See? Your case is exactly like that”, or we can refer complainants to those cases. It really helps resolve cases informally.