Information & Ethics Committee on May 16th, 2022

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much, Chair.

Thank you to the commissioner for coming in today and her openness to answering questions.

I know that Mr. Green made the assertion that he feels that everything is a cabinet confidence.

Perhaps, Commissioner, I'll start by asking if there is evidence to prove that there's any substance to what Mr. Green has said, that everything seems to be a cabinet confidence.

[Caroline Maynard]

I'm only aware of the cases that are referred to me through complaints. We receive files where there is some cabinet confidence information that's been redacted. Unfortunately, I don't have the authority to look at those documents. I have to rely on the words of our institutions when they say that the documents are under cabinet confidence.

It is not the majority of our documents. We have just a small number of cases that deal with cabinet confidence. I wouldn't be able to tell you if that's something being used by the institutions.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Out of the 6,000 some cases that you've received over the past couple of years, how many of those deal with cabinet confidence?

[Caroline Maynard]

I would not be able to tell you right away. I don't think more than 5% of our cases deal with cabinet confidence.

What often happens is that requesters know they're not entitled to those documents, so they will remove that from the scope of their requests, saying, “I want everything but cabinet confidence.” We often deal with complaints dealing with personal information or advice and recommendations. When there's cabinet confidence, like I said, we're not entitled to see them, so it's difficult for us to acknowledge if they are real cabinet confidences or not.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

My friend and colleague, Mr. Kurek, said that since 2019, since he's been elected, he has submitted ATIP requests about 300 times.

Out of the 6,000 that you've received over the past year or couple of years, how many of the claims that you deal with were vexatious claims or fishing expeditions?

[Caroline Maynard]

We don't look at what the intentions of the requesters are. We are asked to review to make sure the request has been responded to in time, or that the redactions are appropriate. We do have a section in the act now that institutions can try to refuse to respond to a vexatious request or one made in bad faith, but they have to ask my permission to do so. In the last two years, we've received maybe a dozen of those requests, and we only said yes to one or two.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

ATIP requests and freedom of information are a huge part of building trust in public institutions and governance. Since 2015, our government invested about $50 million in expanding that transparency within our government.

Do you think this is something we should be expanding on? Are we headed in the right direction? Is there any advice you would give to us on how to continue to build that public trust?

[Caroline Maynard]

I totally agree that we need to increase resources within institutions. They need more trained analysts. They need human resources, but also technology to respond to the increase in demand. There are definitely some investments that need to be made, but like I said earlier, there are all kinds of factors that are impacting the system as a whole.

My submission to Treasury Board deals with both the legislation recommendations and how we can improve the system. I encourage you to read the submission. I will send the document if you want in writing. Resources are one, but the direction from our leaders to have transparency, openness and proactive disclosure is definitely the way to go.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thanks very much for that.

Out of the ATIP and FOI requests you receive, do you keep track of which department those FOI requests are going to or requesting information from? Do you have that information accessible to us?

[Caroline Maynard]

We only track the number of complaints we receive. The TBS is the administrator of the act, per se, so it receives the annual report from each institution, so it knows which institutions is getting what number of requests.

Based on my statistics, I can tell you that Immigration Canada is at the top of the number of complaints we receive, but it also receives over 120,000 requests a year. We have about 4,000 cases right now with respect to IRCC. The CBSA is the second institution we receive the most complaints about. The RCMP is third. CRA is fourth. PCO is fifth.

We keep track of the institutions with respect to the number of complaints we get, but not the number of requests they receive.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thanks for that.

Lastly, we've had a conversation in this committee today about classified information, about top secret information. Do you think that there is...? Obviously, when we redact information, it's to protect national security and to ensure public safety. Where is that balance, in your mind, in providing access to information to the public while also maintaining the security of Canada?

[Caroline Maynard]

The act provides a good test. You have to prove the harm. By providing the information, is there going to be some kind of harm to our relationship with other countries, or with respect to the information itself? As time goes on, sometimes the sensitivity of that information diminishes. That's why we're talking about a program of declassification.

Sometimes, as you create the document, the information is very sensitive, but if it was created 10, 20 or 50 years ago, that sensitivity is gone. We can tell you that we have seen documents that were published by other countries and Canada is still not releasing them. We often question that. It's already public through a different country, so why is this not something that Canada is willing to release?

[The Chair, Conservative, Pat Kelly]

Thank you, Commissioner. I lost track of the clock and allowed that round of questions to go significantly over time.

I apologize to the other committee members for that.

With that, we'll go next to Mr. Villemure.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you, Mr. Chair.

Commissioner, if possible, I'd appreciate it if you could send us details in writing on the last item you shared with us. I'm talking about information that remains classified here but is available in other countries or even on the Internet.

Now I want to talk about reasons for refusal. If someone makes a request for access and it's refused, there is a process to review the request. If it's refused a second time, is there an appeal process outside your office or does it all happen within your office?

[Caroline Maynard]

We are the first stage of review in the federal government. If someone isn't satisfied with my office's investigation or investigation report, they can go to federal court.

[René Villemure, Bloc, Trois-Rivières, QC]

So that's the way to go.

How easy is it for everyday people to get to federal court?

[Caroline Maynard]

As an attorney, I'd say that it's not easy for someone who isn't represented by an attorney.

[René Villemure, Bloc, Trois-Rivières, QC]

Someone in my constituency just wrote that to me.

Earlier you talked about the lack of leadership, or at least the need to show leadership. Can you describe what kind of leadership you'd like to see in this area?

[Caroline Maynard]

We have an access unit that works very hard to convince the government or the departments concerned to release information. These individuals apply the law to try to encourage disclosure of information. Some officials are more reluctant, however. We'd like ministers, deputy ministers and assistant deputy ministers to give permission to disclose, to delegate to public servants their authority to disclose information, and invite or encourage them to disclose information.

For example, when one deputy minister I've spoken to write briefing notes, they circle information that is already public and should be disclosed immediately. That way, people use their authority to release information and eliminate the need for review.

However, we often see the exact opposite happening: When looking at a document, people think about the information they can't disclose, rather than what they can.

We want institutional leaders to encourage transparency. We want that message to be clear, so that people aren't afraid to disclose information.

[René Villemure, Bloc, Trois-Rivières, QC]

We could recommend practices like that, for example.

[Caroline Maynard]

Yes.

[René Villemure, Bloc, Trois-Rivières, QC]

All right.

Thank you, Mr. Chair.

[The Chair, Conservative, Pat Kelly]

Thank you.

Go ahead, Mr. Green.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

I want to note that we are here on the estimates. I appreciate that we've turned it into a grand inquisition. I'll try to go back to that frame.

This past January, your office concluded the systemic investigation into Library and Archives Canada's delayed responses to access requests. You found that almost 80% of the requests completed by Library and Archives did not comply with the time frames as set out in the act.

Your report provided several recommendations to the Minister of Canadian Heritage. However, in your evaluation of the minister's response you said:

The Minister’s response fails to address or identify strategies to tackle the accumulated backlog. Rather, the response prioritizes requests categorized as urgent or those related to class action lawsuits first.

The Minister’s response does not convince me that he has an understanding of the critical situation at LAC and I continue to urge the Minister to ensure that the backlog is dealt with in the most efficient way possible.

You talked about:

Developing streamlined work processes, innovative approaches, setting timelines and goals...one would expect to be considered and implemented by LAC and the Minister.

That's quite a statement and, I think, indicative of the overall malaise. Can you further elaborate on these concerns and whether anything has occurred to change your opinion?

[Caroline Maynard]

I tabled that report very recently.

I understand there's a plan of action being prepared that will be shared with us and the public within the next six months. They're working on obtaining more human and financial resources, which they definitely need. Whether or not we'll see a change.... We haven't so far, because we continue to receive complaints and put these actions in place. I'm hopeful they heard me loud and clear.