Information & Ethics Committee on Oct. 5th, 2022

[Caroline Maynard]

I don't know how the institutions are treating these requests. They're not supposed to look at who's asking for the information. In terms of statistics, I know 65% of all requests are being made by the public in general, which was surprising to me. When I became commissioner, I thought for sure that journalists would be the biggest part, or political parties. Canadians know they have a right and they're using it.

They're not supposed to be classifying in terms of who it is. It's first in, first out.

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

I have one last question in the 40 seconds I have left.

On cabinet confidence, certainly I've found that this not only adds significant delays, but also seems to be a commonly used excuse not to disclose information. Can I ask you to comment on what changes are needed to ensure that something like cabinet confidence cannot be used to keep documents from being disclosed?

[Caroline Maynard]

Cabinet confidence right now is not under my jurisdiction. I am not able to see cabinet confidence documents. What I have recommended is to at least have the first level of independent review of these documents that are being claimed as cabinet confidence, so that we can tell you it is cabinet confidence.

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

Thank you.

[The Chair, Conservative, Pat Kelly]

Thank you.

Next is Mr. Bains for five minutes.

Go ahead.

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

Thank you, Mr. Chair, and thank you to our guest for joining us today.

In your 2021-22 annual report, you note a dramatic increase in the number of complaints—the highest since the office was created. How can we reduce the number of complaints that the commissioner receives each year?

[Caroline Maynard]

We have to do better in responding to access requests in time.

The act provides 30 days, and you can ask for an extension. Right now, we're seeing more and more institutions asking for extensions, not meeting the extension or not responding within the 30 days, or not responding at all. We have cases where complainants say they've been waiting for months and months with not even an acknowledgement. We have to do better in responding to access requests.

The complaints are increasing every day. We are already at 4,900 for this year. We need to do better in responding. We need to give resources to units. We have to make people aware that this is part of their duties. It is a collective duty. The leaders have to pass the message on to their institutions.

We have to do better in managing our information, as I was saying earlier. Requests are becoming more and more voluminous, so they take more time. If you do better at recording the information, erasing the transitory documents but keeping the key corporate documents so that we have a good response, that would be key to responding in a timely manner.

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

In your annual report, you state that “adopting specialized technological tools” will improve the ATIP system. Were there specific technologies you've encountered that the government should take note of?

[Caroline Maynard]

I invite the committee to invite IRCC. Since my systemic investigation.... They were receiving 160,000 access requests per year, and there are now over 200,000 access requests at IRCC. They have used robots to find the information faster and to treat it. It's amazing. They did a presentation to the provincial and territorial commissioners at a conference.

They are still far from being perfect, but providing information on their portal voluntarily instead of having to wait for an access request would definitely help. Technology like artificial intelligence to find similar information in the document, instead of having somebody manually do it, is also helpful, and we have some institutions using that.

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

Thank you.

Can you speak to the unique ways that access to information affects indigenous peoples and how that could be improved?

[Caroline Maynard]

We're definitely seeing that it's affecting reconciliation. There is so much information at the government that we still need to provide them with respect to what happened historically, for them to understand what happened. The commission was very helpful, but we need to share more of that information.

Luckily, a lot of institutions are giving them proactively.... They are giving them information through an informal regime so they don't have to do access requests and pay for the information, but there are still a lot of documents that indigenous people are requiring and that are still outstanding—for example, legal opinions.

I know that Minister Miller said that they were talking with the justice department to make sure that some of that information is going to be shared. I don't know where that is at, but I'm hoping it's going to result in more information being shared with our first nations and indigenous people.

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

Has your office had engagement with indigenous people?

[Caroline Maynard]

Well, when they do a complaint, it has, for sure. My office is involved only when there's a complaint and we have to do an investigation. We have seen some cases, and we're trying to put those as a priority in terms of investigations because of the timelines and the amount of information and the sensitivity of the documents. Often, it's just a question of delays. If they were to get the information, it would be a first step.

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

What's the level of complaints from indigenous peoples?

[Caroline Maynard]

Well, again, it would be either because they made a request and didn't receive the information or because of an exemption being used—for example, section 23, the solicitor-client privilege—on documents that were used by the justice department on cases involving indigenous people. The question is whether discretion could be used in that case by the Minister of Justice to allow the information to be provided. Those are the kinds of conversations we have with departments, including the Minister of Justice.

[The Chair, Conservative, Pat Kelly]

Thank you.

Mr. Villemure, the floor is yours for two and a half minutes.

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

Thank you, Mr. Chair.

Commissioner, are you familiar with the study that was published by Foreign Affairs about the criteria used by the United States for documents classified as "Secret", "Top Secret", and so on?

[Caroline Maynard]

No.

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

It said that the officials responsible for classifying the documents took additional precautions so as not to be blamed. Is this somewhat like what we see here as well?

[Caroline Maynard]

We can certainly wonder whether certain documents should have been classified "Secret" or "Top Secret".

We try to show officials that the fact that a document is marked one of those things does not mean that the exemptions in the Access to Information Act have to apply. Contrary to what some people think, the classification "Secret" or "Top Secret" has to be taken into consideration, yes, but it should not automatically result in the application of the national security exemption. They have to pay attention and apply the act as it is written, not based on how the document is classified.

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

It is a different classification system.

[Caroline Maynard]

Exactly.

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

What criteria that are cited for not disclosing do you consider to be invalid?

[Caroline Maynard]

We think that one of the provisions of the act that gets overused is section 21(1)(a) concerning advice or recommendations, resulting in completely redacted documents. In those cases, we order the institution to disclose the factual or statistical information that does not contain advice or recommendations. The briefing notes often contain several pages of that kind of information, which should have been disclosed.

In our submission to Treasury Board, we recommended including a list of information in the act to which the exemption provided in section 21(1)(a) should not apply. We see that kind of clarification in the equivalent Ontario act and it helps the provincial officials a lot in applying that exemption more consistently.

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

This exemption should not be used to prevent people from understanding.