Information & Ethics Committee on Oct. 5th, 2022

[Caroline Maynard]

The legislation now is requiring proactive disclosure of a lot of the information that was already covered by policies before. The one thing that's been added, and it's very useful, is the list of titles for briefing notes. At the same time, when you see the title, what happens is that the requesters are now asking for the document they want to see, or people are very creative in the title so it doesn't really say what the briefing note is about. That's something I think would be interesting to know, how much of that has resulted in more access requests.

What I would like institutions to do is to proactively disclose information that is requested by Canadians and is not on that list. Call it proactive disclosure or voluntary disclosure, but if you get three requests about the same thing, COVID contracts or vaccine...just publish it and then you won't get the access request later.

That's where I think our institution needs to do a better job of determining what it is that people are asking for.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

That's helpful. Thank you.

I think that's my time.

[The Chair, Conservative, Pat Kelly]

You went a bit over, but not bad. We have some time today. Mr. Bezan also went a bit over.

Go ahead, Mr. Villemure.

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

Thank you, Mr. Chair.

Good afternoon, Ms. Maynard. Thank you for being here today.

At your last appearance, which was very informative, you said there were numerous delays because of the volume of requests. Would you say that the Government of Canada has a culture of privacy?

[Caroline Maynard]

I think you mean a culture of secrecy.

Again, it really depends on the organization in question and its deputy minister, directors general and staff. Each organization is different. As I was saying, none of them is perfect. However, we see a huge difference when the leader asks for statistics about access to information in order to know where the bottlenecks are.

In the case of the Canada Revenue Agency, its commissioner asks what is happening with respect to access to information every two weeks. We have seen huge progress in that agency and we cite this kind of practice as an example with other organizations.

There is a culture of secrecy in the sense that when staff receive an access to information request, they think about what information to delete and not what information to disclose. It is very difficult to change that mindset.

We strongly encourage institutions to do training, not just with their access to information unit, but also with all their staff, who should, collectively, have a sense of responsibility, as I was saying. They are part of the public service and they are involved in processing access to information requests and examining the documents they produce, and how to protect them, as part of their job. These staff have to keep in mind that the goal us to disclose information insofar as possible, and not to conceal it.

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

What reasons do you think justify not disclosing a contract in the name of national security?

[Caroline Maynard]

That really depends on how the contract was drafted. Sometimes, it contains confidentiality clauses. It is really hard to name the reasons off the top of my head, because each case is different.

At the Office of the Commissioner, we encourage people who prepare contracts to be as transparent as possible and let the contractor know that the information is going to be accessible to Canadians, who want to know where their money is going and how decisions are made.

If a contract does raise national security issues, it is processed differently. However, the aim must really be to avoid a danger or a breach of trust.

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

So that should be the exception.

[Caroline Maynard]

Claiming the exemptions provided in the Access to Information Act should always be the exception.

There are several criteria. Often, we see that two criteria apply, but not the third. Unfortunately, the investigation that is needed to reach that conclusion sometimes takes two or three years.

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

Is the Canada Border Services Agency particularly secretive or transparent?

[Caroline Maynard]

There are a lot of complaints about that agency relating to immigration applications, as there are in the case of Immigration, Refugees and Citizenship Canada. In both cases, they tend to be complaints relating to delays in processing access to information requests rather than to the exemptions claimed.

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

Earlier, you mentioned the Canada Revenue Agency, which could improve.

[Caroline Maynard]

All of the institutions can improve, but given the number of access to information requests it received, the Agency is very innovative and takes access to information seriously. It employs 250 access to information analysts, double the number of employees in my office.

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

If I understand correctly, you recommend that contracts be made properly and that they be released. Ultimately, you advocate a culture of openness rather than of secrecy.

Are we moving in that direction?

[Caroline Maynard]

Once again, each institution is different. Health Canada, for example, is making huge efforts. Since one of the things people frequently ask about is the results of laboratory tests, the department is starting to publish them, in response to that interest.

Institutions could look at the requests they receive each year and determine what ten kinds of information are most requested, in order to publish them. In the United States, after three requests, the information is published. We could do that in Canada and make a list of what is requested rather than waiting to receive an access request each time. I think these requests should always be a last resort and the information should already be public. We are talking about information that belongs to Canadians.

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

That is so, yes.

In one of your recommendations, you talked about cabinet confidences. We are finding that the number of these documents that are not published is rising. What can you tell us about this?

[Caroline Maynard]

Unfortunately, I do not have jurisdiction over those documents and they are excluded from the Access to Information Act at present. All my office receives is a confirmation by the institution that certain pages requested are covered by that exclusion.

In the past, I have recommended an independent review mechanism and that my office be authorized at least to see these excluded documents, to be able to confirm that they are actually cabinet confidences. This kind of situation arises, as in the case of certain documents denied on the ground that they are covered by solicitor-client privilege under section 23 of the act. When we review those documents, we can confirm that they do not involve a legal opinion.

In the case of cabinet confidences, I would like to be able to make sure that this exemption is being applied genuinely.

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

As members of the public, we cannot know that. We rely on you.

[Caroline Maynard]

Yes, but I do not disclose anything. All I do is determine whether or not the exemption has been properly applied.

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

Right. Thank you.

[Caroline Maynard]

It's my pleasure.

[The Chair, Conservative, Pat Kelly]

Thank you.

Now we'll go to Mr. Green for six minutes.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

I would like to welcome you back to this committee, Ms. Maynard. It's very timely that you're here.

In your opening remarks, you spoke about access to information as being almost fundamental to freedom. I believe you used the word “freedom” multiple times. Could you perhaps, from your perspective, give us your value statement or your reasons why you believe that in a democratic system access to information is a fundamental part of our freedom?

[Caroline Maynard]

To me, without information, without knowing what decisions are being taken on what facts and on what data, and what money is being spent, Canadians are not aware. We keep talking about Canadians losing trust in our democracy and losing trust in our governments. Interestingly enough, the municipal levels are the most public. They do hearings with the public, and Canadians can go and listen to the decisions being made at the municipal level. At the provincial and federal levels, it's very difficult to obtain information.

This is why I think we need to be proactive in our sharing of the information, because Canadians are asking more and more questions. They know their rights, and if they don't have the information from our own institutions, they're going to turn to other sources of information, which will lead to misinformation.

This is why I think the more you give them, even if they don't agree.... That's why democracy is so important: They don't have to agree with you. They don't have to agree with the other party, but at least they understand. It's the same with our kids. They ask us questions, and we explain. They don't have to agree.

[Matthew Green, NDP, Hamilton Centre, ON]

I do agree with that sentiment.

I reflect on stories about the Prime Minister's Office using dozens of secret orders in council. I reflect upon my work at the Emergencies Act review committee, where senior cabinet members are refusing to disclose basic information to the committee, contrary, in my opinion, to our parliamentary privilege. In fact, some senior staffers are actually saying outright, both at this committee through the RCMP and at other committees, that they will not give us the most basic information. In fact, there was a situation where....

Can you please pause my time? Can we make sure that all of the sound is off from the staffers? It happens from time to time, but it does throw you off.