Information & Ethics Committee on Oct. 5th, 2022

[The Chair, Conservative, Pat Kelly]

I call this meeting to order.

Welcome to meeting No. 38 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Today's meeting is taking place in a hybrid format, pursuant to the House Order of June 23, 2022. Therefore, members can attend in person in the room or remotely using the Zoom application.

This meeting is pursuant to Standing Order 108(3) and the motion adopted by the committee on Monday, May 16, 2022. The committee is commencing its study of access to information and privacy systems.

I would now take a moment to welcome today's witness. Caroline Maynard is the Information Commissioner of Canada.

The floor is yours for an opening statement. Go ahead, Commissioner.

[Caroline Maynard, Information Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada]

Thank you, Mr. Chair.

Thank you for inviting me to address you once again.

Last May, when I appeared before this committee, I painted a rather bleak picture of the state of access to information in 2022. I was pleased that at the conclusion of my appearance, this committee voted to undertake a study of the access to information and privacy system.

I would recommend that any such study begin with a review of the findings of previous parliamentary committees, as this is far from the first time that access to information has been the subject of such a study. Unfortunately, past studies have resulted in only a few concrete changes. I also note that we are still waiting for a report regarding the review of the access to information regime launched by the government in 2020.

On this subject, I would invite the committee to consult my submission to this review, which contains 18 recommendations for changes to the act. Among other things, it recommends that cabinet confidence be subject to the act, as well as ministers' offices and the Office of the Prime Minister. It also includes recommendations to help with response timelines and to limit the scope of exemptions.

My recommendations also contain four suggested areas of focus not requiring legislative change, all of which I would be happy to discuss in detail today: leadership, and, by extension, culture; the need for innovation and more resources; duty to document and information management; and declassification.

I would like to emphasize that respecting the law as it currently exists would represent an important first step to improving the state of access to information. Right now, 30% of access to information requests are not responded to within the legislated timeline, even taking into account extensions, a number that is increasing year after year. However, Canada's Access to Information Act provides no dispensation from its requirements, even in extraordinary circumstances.

In my meetings with ministers and senior officials, I often hear about a shared commitment to the right of access, but at the end of the day, actions speak louder than words. Leaders must ensure that their institutions live up to their legislative obligations.

This is why, this year, my statement for the Right to Know Week was focused on the theme of accountability. Leaders must be held accountable for their institutions' performance in the area of access to information. My provincial and territorial counterparts echoed this at the conclusion of our annual meeting, held in mid-September, calling on leaders of public institutions to play their role of upholding the right of access and promoting transparency.

If there is any hope of improving things, leaders across government institutions must redouble their efforts, ensure that their organizations treat access to information as a collective responsibility, and treat the right of access as the quasi-constitutional right it is.

In closing, as you undertake this study, I will be pleased to appear again before this committee at any time to elaborate on any matter that could potentially help create a better access system for Canadians.

Thank you.

I will be happy to answer your questions.

[The Chair, Conservative, Pat Kelly]

Thank you for those opening remarks.

First is Mr. Bezan. Go ahead for up to six minutes.

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

Thanks, Chair.

I want to thank the commissioner for taking the time to meet with us and help us with the study we're undertaking.

Treasury Board Secretariat is doing a statutory review. Should it be done by unelected officials, or should it be done by parliamentarians, who are accountable to the people and are often the ones asking for this information?

[Caroline Maynard]

Under the current act, with the amendments made in 2019, there are two legislative reviews that are mandatory: one by Parliament and one by Treasury Board, the government. The first one was supposed to start a year after the act was approved, and then after that they would be every five years.

As I said earlier, TBS launched the review in 2020, and we are waiting for a report on their findings. Apparently, it's supposed to be tabled at the end of this fiscal year. I am not sure whether a parliamentary review has been started, unless this is it. I believe this could be it, because you are opening a review of the system, and for me, the system includes the act.

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

So maybe we should be including a review of the act while we're undertaking this study.

When you list the departments that are complying with the access to information rules versus those that are laggards, where does Treasury Board actually rank in that? They are the ones actually doing the review of your office and the act itself. How are they providing access to information that's been requested by Canadians?

[Caroline Maynard]

I have the list here. Treasury Board is not in my top 20, so they're not doing badly at all, but none of the departments are doing great. Everybody is having difficulties meeting the 30-day time limit, and there are a lot of issues with extensions. My office has received 70% more complaints this year than last year.

I think it's just a question of leadership. I think the departments where the leaders believe in access and are showing it and giving the resources appropriate to respond to the access requests they receive are doing better, but again, this year we're seeing another increase. I think at this time, I may receive up to 10,000 complaints this year if it continues the way it has.

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

So that's a record.

[Caroline Maynard]

Yes, every year it's a record, and not a good record.

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

That's unacceptable.

I know that on top of the length of time to get responses back.... I'm looking at one here that took 270 days to get, so the 30 days plus 240, from a number of different departments.

I have one access to information request here. It's from the Department of Justice. The question was about Minister Mendicino's involvement in the potential falsification of records as to when the College of Immigration and Citizenship Consultants Act was brought into force. All the documents from the Department of Justice are redacted, under claims of solicitor-client privilege. Is that proper for access to information? Even the subject lines are redacted. All we have are the email addresses of who it was between and maybe “I hope you have a great weekend.” That's all that was available to the public.

[Caroline Maynard]

As you can expect, if you are asking the Department of Justice for information, most of their information is protected by solicitor-client privilege, under section 23. However, that being said, not all communication between lawyers is. I am a lawyer and I do a lot of communication that is not subject to solicitor-client privilege. We see that more and more. We would have to review the case itself. I would say that 75% of the time, it's properly applied, but we still have to review the documents to see.

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

You don't know whether it's obfuscation, abdication or cover-up.

[Caroline Maynard]

It really depends on the case. We have to look at the documents themselves, which I have the authority to do.

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

Do you?

[Caroline Maynard]

I do, so if you make a complaint—

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

If there's a complaint put in to you—

[Caroline Maynard]

—I can compare the two documents and I can tell you.... Complainants really like that, because we are an independent review body, so we can tell them on the phone, “This is a legal opinion, and you're not going to get it” or “Yes, this is something we will have to push a little bit more.”

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

Essentially, what we have here is that 150 pages have been redacted or completely removed under section 23 of the act, which is the solicitor-client privilege case. I wonder what type of faith Canadians will have when they go to the Department of Justice or.... This is even worse than the stuff we get from Privy Council. When we do an access to information request to the Privy Council, stuff will be whited out or darked out and redacted, but it goes beyond the pale that they're taking everything that might be inconsequential to the information we're seeking. You can't read between the lines when you can't even see the lines.

Right now, your responsibility really applies only to government departments. What about Crown agencies? Some currently don't fall under the act. Nav Canada comes to mind.

[Caroline Maynard]

In my submissions to Treasury Board, I believe I actually made a recommendation that any organization that functions on behalf of the government and is using public funds to do service for Canadians should be subject to the act. That would make both Crown corporations and private entities that are sometimes contracted to work for the government subject to the act.

[The Chair, Conservative, Pat Kelly]

Thank you. We're out of time.

Now we have Ms. Hepfner for up to six minutes.

Go ahead.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you, Chair.

Thank you to the witness for being here today to share her expertise.

I was a journalist in my former life, and I filed many what we called “FOI requests” back in the day. At the Hamilton Spectator in the late 1990s, it was mandated that reporters would file a certain number of requests. It was seen as a good way to dig up information. Some members of Parliament opposite do it a lot as well.

Things have changed a lot since then. Back in those days, it could cost hundreds of dollars to get that information. It still took months, and then you'd get a bill for how much it was expected to cost, depending on how many documents would come back. Today, I understand there is a base fee of $5 and I'm wondering how much that has changed the work of your commission.

How much has it changed the work, the type of work and the number of requests you get?

[Caroline Maynard]

I believe in freedom, and I believe that it should be free. To me, $5 is very reasonable, and I think Canadians are very lucky to be able to access information for no fees at all.

The problem is that because we're not very good at managing our information and because some requesters are asking for enormous numbers of documents, that has created a huge, sometimes very overwhelming, amount of paper and documents to go through for institutions.

It used to be, because you were charging, that the requester would scope down their requests because they didn't want to spend $1,000. Now we don't have that, so our institutions are telling us that they are dealing with requests that are over thousands and thousands of pages. To me, one of the key things is managing our information. If we were to clean up our email box.... Sometimes we see a request that asks for certain decisions made and there are 500 pages of an email chain going back and forth. If somebody had just kept the three or four pages that were really relevant, you wouldn't have that extra problem of dealing with this extra amount of paper.

We do have unreasonable requesters and we have unreasonable people. This is why the government has also changed the act and added a provision that if you are dealing with a request that is frivolous or made in bad faith, you can ask my authority to not respond to that request. It has not been used very much, which is great because it's an exceptional method, but if it's something that the institutions feel is completely unreasonable, is made in bad faith or is not a right use of the access act, they can use this. It has been used and it's been accepted a couple of times in the last two years.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Do you think there should be more of a framework around that? I understand that people can request every document in a department, which is absolutely unreasonable and impossible for whatever department. Should there be a framework so that it's more balanced and the process is more nuanced?

Is there a way, or is the current way we're handling it with your authority enough?

[Caroline Maynard]

The act is there to make government accountable and to improve our democracy. Who will be judging whether the request is made with that intent? It's really difficult. For a journalist, yes, you're asking sometimes for more than you want because maybe you're looking for stories or you want to make sure you don't miss anything. It would be difficult to start saying what kind of intention should be behind the request. Keeping it global, the way it is, there is freedom. It's giving Canadians as much as we can.

There may be more and more limitations, which we already have, in terms of unreasonable requests that are made in bad faith, because people will start to know my decisions. I'm publishing my decisions right now in order to give guidelines to institutions as to when to use it and when not to use it. I'm hoping that's going to reduce the number of those types of cases.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you.

I know that our government has proactively released a lot of documents that previously would have been covered under the legislation. Has that changed the work of your commission at all?